The book criticizes an attitude I call “global legalism,” the faith or hope that international law can solve the word’s problems even though the world is a largely anarchical place, one with weak institutions and an incredibly diverse array of peoples.
This view is hardly new, and criticisms of it are not new, either. But in the last twenty years, global legalism has taken hold with renewed force, thanks in part to the collapse of the Soviet Union, the acceleration of international cooperation that followed that collapse, and the profound but brief sense that all the nations were converging to liberal democracy.
The book is not entirely negative about international law. It argues that international structures that assume good will and global consensus are bound to fail, and that nations should concentrate on less ambitious forms of international law that take seriously the national interests of states and the limited forms of cooperation that are possible.
So the book is about both the promise of international law and the limits of international law. For those who have adopted the book’s perspective, the supposedly “lawless” behavior of the United States under George Bush would not have been a surprise, nor would Barack Obama’s decision to continue with many of Bush’s policies rather than to make a clean break with them. The United States will act in its interest, and when international law blocks the way, it will violate the law unless the negative consequences are greater than the benefits. This is the way all nations view international law; it is just that American actions are more noticeable because of that country’s power and importance.
“Compliance is the central problem of international law.”
International legal scholars have, with only a few exceptions, taken a largely uncritical approach to the international legal institutions that they study. Compliance with international law is taken for granted, and the argument has mainly concerned how international law should be advanced. But compliance is the central problem of international law.
If compliance is assumed to occur, then there is little to debate—we might as well create as much international law as possible. Because states have trouble cooperating, they can only punish law violators with difficulty, with the result that states can often violate international law with impunity. The challenge for scholars, politicians, and diplomats is to design forms of international law that are robust and to recognize the outer limits of what international law can accomplish.
This position is controversial among international law scholars, but it is more common among political scientists, many of whom are skeptical of the efficacy of international law, and others of whom have focused the critical tools of rational choice on them. My book follows in this latter tradition: it attempts to understand international law as the result of states rationally following their national interest.
The major question is how much trust can we put in international law and institutions. Should the United Nations be treated as a kind of proto-government of the world, or as an occasionally useful mechanism for coordinating the actions of the great powers? On the first view, we should work to reform and improve the United Nations; on the second view, we should use it when it is useful and not otherwise. Should international courts be understood as the ultimate arbiters of international justice or occasionally useful devices for resolving low-level disputes between states? On the first view, we should put our energy into constructing and supporting international courts; on the second view, we should use them only when necessary. Do human rights treaties cause states to improve their treatment of their citizens, or are they largely meaningless? On the first view, our efforts should center on the existing human rights treaties; on the second view, we might think more about other ways of helping people, for example, through development aid. I take the skeptical side in these debates.
I began writing about international law in the late 1990s after a colleague pointed out that my longstanding interest in rational choice explanations of decentralized behavior, social norms, and similar phenomena could be applied to international law. Much of social behavior is effectively unregulated—the government doesn’t regulate our friendships or much of our family life or even, it turns out, much of the business world. International relations are similarly unregulated. This parallel—the absence of (national) government in our social lives, and the absence of (world) government in international relations—got me thinking about international law.
International courts have appeared in the news lately. The public seems vaguely aware of their existence and in some quarters there seems to be an expectation that they can try various bad guys around the world for their crimes. For some people, this means members of the Bush administration or Israeli generals; for others, this means dictators and human-rights abusers in Sudan, Iran, and North Korea.
My book discusses the history of international adjudication and its prospects for today. The bottom line is that although states have successfully relied on courts to resolve disputes from time to time in narrow circumstances, there is little reason to think that they will support a court that seeks to take on the hardest problems of international justice.
“Although states have successfully relied on courts to resolve disputes from time to time in narrow circumstances, there is little reason to think that they will support a court that seeks to take on the hardest problems of international justice.”
The Nobel Prize awarded to Barack Obama has crystallized doubts about how much progress his administration has really made over the Bush administration, which was widely perceived as an international scofflaw and bully. Obama has pledged to close Guantanamo Bay and has abjured torture, but it has adopted most of the Bush administration’s other counter-terror policies and the legal theories that underlay them.
Obama has expanded the war in Afghanistan and advanced it into Pakistan without congressional or UN authorization, and he has continued the policy of detaining people without charging them and launching targeted assassinations, policies which are also in tension with domestic and international law.
Rather than being disappointed with Obama, one might rethink the criticism of the Bush administration. In the anarchical international environment, legalistic thinking can easily to be taken too far. It is better to evaluate Obama’s policies in terms of international politics and morality; their lawfulness will always be, to a large extent, in the eyes of the beholder.
Eric Posner is Kirkland and Ellis Professor of Law, University of Chicago. He is author of Terror in the Balance: Security, Liberty and the Courts (with Adrian Vermeule, Oxford, 2007); New Foundations of Cost-Benefit Analysis (with Matthew Adler, Harvard, 2006); The Limits of International Law (with Jack Goldsmith, Oxford, 2005); and Law and Social Norms (Harvard, 2000). He is also an editor of the Journal of Legal Studies.