Over at Opinio Juris, there's a post about a new book by Jens David Ohlin, called The Assault on International Law. Here's the publisher's description:
International law presents a conceptual riddle. Why comply with it when there is no world government to enforce it? The United States has long history of skepticism towards international law, but 9/11 ushered in a particularly virulent phase of American exceptionalism. Torture became official government policy, President Bush denied that the Geneva Conventions applied to the war against al-Qaeda, and the US drifted away from international institutions like the International Criminal Court and the United Nations.
Although American politicians and their legal advisors are often the public face of this attack, the root of this movement is a coordinated and deliberate attack by law professors hostile to its philosophical foundations, including Eric Posner, Jack Goldsmith, Adrian Vermeule, and John Yoo. In a series of influential writings they have claimed that since states are motivated primarily by self-interest, compliance with international law is nothing more than high-minded talk. These abstract arguments then provide a foundation for dangerous legal conclusions: that international law is largely irrelevant to determining how and when terrorists can be captured or killed; that the US President alone should be directing the War on Terror without significant input from Congress or the judiciary; that US courts should not hear lawsuits alleging violations of international law; and that the US should block any international criminal court with jurisdiction over Americans. Put together, these polemical accounts had an enormous impact on how politicians conduct foreign policy and how judges decide cases – ultimately triggering America’s pernicious withdrawal from international cooperation.
In The Assault on International Law, Jens Ohlin exposes the mistaken assumptions of these ‘New Realists,’ in particular their impoverished utilization of rational choice theory. In contrast, he provides an alternate vision of international law based on a truly innovative theory of human rationality. According to Ohlin, rationality requires that agents follow through on their plans even when faced with opportunities for defection. Seen in this light, international law is the product of nation-states cooperating to escape a brutish State of Nature—a result that is not only legally binding but also in each state’s self-interest.
So is international law under assault, by certain law professors or by the U.S. government? I'm a little skeptical. It seems to me that rather than a move away from international law, there is more of a shift in emphasis from certain international law to other international law. In this regard, governments -- the U.S., of course, but others as well -- are pushing for more of some international law (international economic law in particular), while they increasingly ignore other international law (e.g., torture or environmental protection). As an example, while the U.S. has, arguably, ignored international law on torture, it is pushing hard for an enforceable international law obligation that requires protection for biologic data in the TPP! Thus, it's not that the U.S. is having doubts about international law. Rather, it just feels that, as an issue to be addressed under international law, biologics are more important than a prohibition on torture.
More broadly, here's what I see going on in international law (not that I'm remotely an international law expert, but I read some stuff now and then). On the one hand, WTO obligations are [generally/often/sometimes] complied with, even by the U.S.; investment treaties are proliferating, as is litigation pursuant to these treaties; more and more FTAs are being negotiated, and their scope is expanding (the U.S. government, that alleged international law skeptic, is even bringing a claim under the labor provisions of the CAFTA).
At the same time, it seems that governments ignore much of other international law, such as whaling law, narcotics law, environmental law, human rights law, criminal law, and, as noted, the law of torture.
So, the question I have about all of this is, why is enforceable international economic law growing, while the rest of international law is often weak and ineffectual? (Technically, it may be "binding," but it is rarely enforceable.)
Perhaps this is mostly about the power of lobbying, as influential interest groups try to convince governments to pursue their preferred policies. The pharmaceutical industry has simply been more effective at lobbying on biologics than human rights groups have been with regard to torture.
Or perhaps there is something about the nature of the different policies. Some work better as international law obligations than others do. Torture is, for some people, tied to national security, and governments are not willing to compromise much where they perceive national security is at issue. It may be that we were always willing to torture (and perhaps actually did torture). The aftermath of 9/11 just brought this out into the open.
By contrast, protectionist economic policies are almost uniformly criticized by economists, and bad for international relations, too, so everyone is comfortable putting constraints on themselves.
Or am I completely wrong about this, and I'm simply acting parochially by promoting my field and denigrating others? (Keep in mind, though, that I'm an IP protection skeptic, and would prefer that if we have any international law in this area -- and I'm not sure we should -- it should set maximum rather than minimum protections.)
As to the U.S. law profs in question, I have no idea what they think of the implications of enforceable international law on biologics in the TPP, proliferating investment treaties, or labor rights under CAFTA -- someone who knows them should ask them! (I recall that Posner and Yoo thought the WTO dispute system was not as effective as some claimed, but I don't think they viewed it as ineffective as, say, human rights law).
No doubt readers of this blog who know something about international law will have some opinions about how I've completely misunderstood the issues! (And I should note that I haven't actually read the book.)
