Does international law bind superpowers?

by Tony D'Amato

I continue to be amazed when educated people say that international law is not binding on the United States, or that international law cannot be enforced against a superpower, or that the United States can violate international law whenever it wants to, or that international law doesn’t exist.

Let’s take the strongest of these claims: the enforcement claim. Let’s stipulate that if international law cannot be enforced against a superpower, then it doesn’t exist.

Hans Kelsen, whose fundamental position was that law is nothing more nor less than a coercive system, argued in 1948 when he drew his attention to international law that coercion in international law takes the form of forcible reprisals. A state commits a delict (in Kelsen’s useful terminology) when it violates a rule of international law. The state that commits a delict opens itself up to a reprisal by other states. A reprisal is a kind of countermeasure, a tit-for-tat retaliation. The most important characteristic of a reprisal is that it would be a delict if standing alone. What saves it from being delict is that it may permissibly be taken, under customary international law, in retaliation for a delict.

Kelsen came to the conclusion that international law is a coercive order because it is enforced through the reprisal mechanism. I think I will have no difficulty in persuading you, at least, that this is exactly what happens under a treaty.

Suppose nation A decides to violate Article 13 of a treaty it has entered into with states B, C, and D. Under the general customary rule of reciprocity, A’s violation of Article 13 immediately releases B, C, and D from observance of Article 13 in their dealings with A. Of course, A already took this into account when it decided to violate Article 13. A went ahead with the violation because it calculated that its benefit in violating Article 13 exceeded the cost of releasing B, C, and D from their corresponding obligations of Article 13.

But treaties are “package deals.” State B, for example, might have signed on to the treaty because Article 13 was especially beneficial to itself even though Article 8 was costly even though it was especially beneficial to A. All four nations were able to agree on the final treaty language because there were goodies in the treaty package for all of them.

So now A comes along and decides to abrogate Article 13. We have just postulated that B is the leading beneficiary of Article 13 and would not have signed the treaty if Article 13 had been omitted. Therefore, if B’s remedy for A’s breach were confined to the reciprocal remedy—that is, the release of B from Article 13—that would not be good enough. Article 13 was never onerous to B in the first place, it was only onerous to A.

Enter the customary international law of treaties. Thousands of years ago, and well before the Vienna Convention on the Law of Treaties, the customary international rule developed that allowed a treaty party to retaliate for a breach by disavowing a different provision in the same treaty (in the earliest law, a breach permitted the other party or parties to withdraw completely from the treaty).

This is the quintessential case of a Kelsenian retaliation. In an article spelling all this out, I called it a “tit-for-a-different-tat.” Of course, the reprisal has to be proportionate to the initial delict; if the reprisal went too far, it would itself constitute a new delict. I considered the problem of runaway retaliation in the article.

Now there is only one analytical step left: we go from treaty law to customary law as a whole. Consider all of international law as a huge interconnected system, very much like a huge treaty with every nation as party. A delict by one state invites a reprisal from another state (usually the injured state). In this theoretical model, all the rules of international law are enforceable by tit-for-a-different-tat reprisals.

Suddenly we should see how easy it is to enforce international rules against the United States. There are thousands, perhaps millions, of rules of customary international law, and additional thousands or hundreds of thousands of rules in treaties we have ratified. All these rules give legal entitlements to the United States in millions of areas and circumstances, just as they also give rise to obligations of obedience. The result is that most of the time we do not break rules of international law because of fear of retaliation. As Louis Henkin famously said, “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”

OK, you want me to be specific. Exactly where and how is the United States vulnerable to forcible reprisals? Certainly by nothing so crude or futile as other countries’ dropping bombs upon the territory of the United States, even though this is the first thing that people think of.

The assets and values of the United States are not confined to its territory. The United States is vulnerable because of its investments and nationals located all over the world. The United States has major financial investments in foreign-owned companies in nearly every state. More importantly, at any given time there are hundreds of thousands of American citizens either traveling or residing abroad. The Census Bureau reports that in 1998 there were over 56,000 Americans traveling abroad (compared to 46,000 foreign tourists visiting the United States). Even more striking are the figures of American citizens residing abroad as reported by the Bureau of Consular Affairs in 1999. There were 27,600 citizens residing in Buenos Aires, 55,500 in Sydney, 250,000 in Toronto, 48,220 in Hong Kong, 75,000 in Paris, 138,815 in Frankfurt, 45,000 in Tokyo, and 441,680 in Mexico City. Among the smaller countries which could become “hot spots,” the Bureau reports 646 American citizens living in Albania, 1,320 in Bangladesh, 1,600 in Bosnia, 440 in Congo, 2,000 in Cuba, 10,000 in El Salvador, 546 in Gambia, 11,000 in Haiti, 18,000 in Israel (Tel Aviv), 8,000 in Jordan, and 6,639 in Kuala Lumpur, and I’ve taken those examples from just the first half of the list. To these figures must be added the many thousands of American military personnel and their dependents on foreign bases.

How many American nationals must a country threaten to make the United States take notice? Just 50 were sufficient in 1978 when Iran arrested that number of American diplomatic and consular personnel in Tehran. The hostage-taking led to severe repercussions in the United States including perhaps the defeat of presidential incumbent Jimmy Carter in the election of 1980. Of course, the World Court ruled specifically that the Iranian hostage-taking was not a reprisal for anything the United States had done. The result, as I spelled out in the article previously mentioned, was that the United States went ahead with its own reprisal against Iran, one that was completely successful in getting all the hostages back unharmed.

Superpower vulnerability is enhanced by the bluntness of the military instrument. For example, even though the United States could have annihilated Iran with a volley of nuclear ICBMs, such a wholly disproportionate retaliation would not have saved the hostages. The global scatter of assets and persons from all nations has virtually assured the universal efficacy of the international reprisal system. Indeed, in a shrinking world, the reprisal system is likely to become increasingly efficient. Perhaps there is a correspondence between the efficacy of peaceable reprisals and the recent findings that there has been a steady decline in the global magnitude of armed conflict following its peak in the early 1990s.

http://opiniojuris.org/2005/08/14/does-international-law-bind-superpowers/

16 Responses

  1. Professor D’Amato,

    I’m curious as to how you would respond to Professor Franck (who can hardly be considered a “New Sovereigntist” critic of international law on par with Goldsmith, Yoo, Rabkin, et al). Here’s what Professor Franck wrote 35 years ago:

    The failure of the U.N. Charter’s normative system is tantamount to the inability of any rule, such as that set out in Article 2(4), in itself to have much control over the behavior of states. National self-interest, particularly the national self-interest of the super-Powers, has usually won out over treaty obligations. This is particularly characteristic of this age of pragmatic power politics. It is as if international law, always something of a cultural myth, has been demythologized. It seems this is not an age when men act by principles simply because that is what gentlemen ought to do.

    The Iraq war, of course, has led Professor Franck to glumly affirm his 1970 critique (Thomas Franck, What Happens Now? The United Nations After Iraq, 97 AM. J. INT’L L. 607 (2003)):

    In your opinion, is Professor Franck’s original observation in 1970 (and his re-affirmation of this viewpoint in 2003) an accurate observation of the international legal order?

    Thanks.

  2. I continue to be amazed at how naive international lawyers are about the nature of power. While it’s true that almost all states do follow almost all international law almost all of the time, that’s not the appropriate metric. One must be careful to distinguish the difference between the effect of law and the coincidence of law and interest. If law merely reflects what states want to do anyway, then the law isn’t what’s causing states to behave in any particular way.

    In order to claim that law “binds” superpowers, one must show that states follow law when they DON’T want to…that is, law prevents them from taking an action, or punishes them when they do. And as we see, from NATO’s action in Kosovo, France and Germany’s refusal to adhere to EU limits on deficits, American rejections of NAFTA rulings on Canadian softwood imports (the list goes on ad infinitum, but I’ll stop here), states very often violate international law, and the powerful are rarely, if ever, punished.

    Furthermore, the kind of “enforcement” mechanism Professor D’Amato discusses should hardly be an examplar of international law. Rather, it proves that what matters is power. States with power (and we’re not talking about a crude metric like nukes or armies) violate law when they need to and other states with power retaliate when they can. It’s not that international system has no order, it’s just that that order is created and enforced by states.

    International law can, however, have one powerful effect Prof. D’Amato does not mention. It can have a transformative effect on the ideas and preferences of a state, transforming how it acts on the international stage However, that is a long, slow process of internalizing new norms, and not the “enforcement” of international law per se.

  3. I think the Greeks summed it up best with, roughly, “the strong do what they will; the weak suffer what they must.”

    Neither the state of international law, nor human nature, has changed significantly in the thousands of years since, except in the minds of international law scholars. ;-)

  4. Prof. Weinberger,

    Can’t the same objections be raised against the domestic laws?

    Isn’t international law merely law operating in a wider field? We have local, state, and federal laws, and we enforce them just as perfectly as our understanding and resolve allows.

    It’s hard to see where there is any consitutional obstacle (note little “c”) to enforcing int’l law, and for the US at least, the Supremeacy Clause suggests that we have a Constituional duty to enforce int’l laws in force for the US.

    I do see the practicial difficulties, but I also think that Prof. D’Amato is (rightly) pointing out that it’s merely a failure of effort and determination.

  5. Charles:

    Good question…the difference has to do with a monopoly on the use of force and legitimacy to use it. A functioning domestic regime has a monopoly on the use of force (that is to say that no other domestic party can challenge the government) and has some degree of legitimacy to use force to uphold and enforce the law (the public recognizes the right of the government to enforce the law). When a domestic polity loses either of those, it is in trouble, and often fails.

    Who in the international system has a monopoly of force? The US is the closest it comes (of course, the possession of nuclear weapons makes this not quite true, but the point is made), but no international body has any military force of its own. Thus, international law has no force behind it and no way to enforce its laws.

    Who in the international system has the legitimacy to uphold the law? To some degree the UN does, but it is dependent on other states to provide the force to back up its legitimacy. Also, the UN suffers from serious legitimacy problems as well. Why was the intervention to protect the Kosovars carried out by NATO? Because Russia and China would have vetoed any Security Council resolution. This was an operation that was widely considered legitimate by the international community; so much so that Kofi Annan declared that the NATO intervention was technically illegal, but fundamentally legitimate. Herein lies the problem. The institutional structure of the UN makes it almost impossible for it to uphold the law. Case in point: regardless of what anyone thinks about the US invasion of Iraq, there is no question that Iraq was in violation of numerous UN resolutions for a period of many years. What was done about that? Nothing. Who came to enforce the genocide conventions against Sudan or the Hutus in Rwanda? No one. The UN is a slave to its insitutional structure which leaves it powerless in the face of politics to enforce its law. Does anyone really think that a body that lets Sudan and Zimbabwe serve on the human rights commission, and that allows power politics to dictate when and where it enforces the law, has a strong claim to legitimacy?

    As for your point about the Supremacy Clause, it only applies to treaties signed by the president and ratified by Congress. Much of international law comes from precedent and state behavior, which does not become domestic law in the US. When treaty laws are violated, that is in essence a violation of US law. But this only makes my point even stronger…it is then up to US domestic enforcement to ensure that international law is followed.

  6. To YUVAL RUBINSTEIN: My friend and esteemed colleague Tom Franck happens to represent a mainstream international law view that is still apologetic as a result of the critique of Hans Morgenthau. Tom and I disagree as to reprisals; it’s possible that he doesn’t “see” them. A reprisal is indeed hard to see because it hardly ever happens; it’s the threat of the reprisal that enforces the law.

    To SETH WEINBERGER: Of course international law reflects what states in the aggregate want to do. If it didn’t, it would have been a non-starter five thousand years ago. The only real difference is between long-term and short-term interests, which can vary from state to state and from time to time. State A may be in favor of rule R as a long-term general proposition, but wants a reprieve from it in the short term. State B acts to protect the rule against short-term incursinos because too many of the latter can vitiate the rule itself.

    The instances you mention are all claimed short-term exceptions.

    Saying that international law only has a transformative effect is small potatoes. It has a transformative effect BECAUSE it is enforceable.

    As a political scientist I have long been a student of power. Law can be a servant of power (Machiavelli) or a controller of power (Machiavelli). (To boot, Machiavelli throws in Fortuna as a third force to be reckoned with.)

    To GEORGE MORRIS: Why, if I am stronger than my wife, it is she who does what she will?

    To CHARLES GITTINGS: An exceptionally clear thinker, here and in your posts to other blogs.

    TO SETH WEINBERGER: If a domestic regime has a monopoly of force, but can be brought down by a failure of legitimacy (that is, LAW), then force is only part of the story.

    I agree with your critique of the UN, however. It’s nothing but a Gang of Five.

    While it may be “up to US domestic enforcement to ensure that international law is followed,” as you say, the failure of domestic enforcement does not excuse our obligations under the treaty. What makes the treaty itself work is the reprisal mechanism I tried to spell out in the blog.

  7. Prof. D’Amato:

    I appreciate your thoughtful and considerate responses.

    As to your reprisal mechanism: I must say that I see this as supporting my side, rather than yours. A reprisal mechanism can work on two premises: Vigilante justice, or sanctioned retaliation (a la the WTO). The former is clearly NOT law. If law is left up to the hands of the mob, be it a posse or state, then it ceases to function as it becomes subject to the whims of those who would enforce it. This is why Annan was so hestitant to endorse the Kosovo intervention (which was, of course, used by Bush and Powell to justify the Iraq invasion) and why the people massacred in Rwanda and Darfur cannot hope for enforcement of their legal rights. Since states didn’t care about the fate of Africans, the law was powerless to help them. Law must be applied as fairly and evenly as possible. When the enforcement of international law is left up to when and where states choose to enforce it, law cannot be considered just.

    As to the case of sanctioned enforcement (where an aggrieved party is given the legal right to retaliate against a state that has harmed it [this is how the WTO enforcement mechanism works]) this again leaves international law at the mercy of powerful states. Why is it that the US, the EU, and Japan have been able to refuse to lift subsidies to their domestic industries in clear violation of WTO law? Because the aggrieved states are not powerful enough to impose retaliatory sanctions that would damage the violators sufficiently and make them change their ways. The US and EU are content to offer each other side payments so as to carry on with their patterns of subsidies, but when Cambodia or Mali wants to see a cotton subsidy lifted, the law is again helpless to protect their delineated rights.

    If law is to be LAW, it must be as fair, just, and equitable as possible. International law is all too often none of these things, as it all too often is trumped by power considerations.

  8. Prof. D’Amato:

    What relevance, exactly, does the “law” have to the ability or even the inclination of a state to retaliate against another by taking hostages, holding treasure, etc.? Those actions are not in any meaningful way limited to circumstances where “law” is on the side of the perpetrator. While there may sometimes be a coincidence of law and interest (as Prof. Weinberger points out), there also may not. Likewise, because of the omnipresent and generally far more substantial (even on the non-military terms you set out) threat of further retaliation by the US, this sort of enforcement is sporadic and not very effective, at best. This just doesn’t sound like “law enforcement” to me.

  9. Prof. D’Amato:

    What relevance, exactly, does the “law” have to the ability or even the inclination of a state to retaliate against another by taking hostages, holding treasure, etc.? Those actions are not in any meaningful way limited to circumstances where “law” is on the side of the perpetrator. While there may sometimes be a coincidence of law and interest (as Prof. Weinberger points out), there also may not. Likewise, because of the omnipresent and generally far more substantial (even on the non-military terms you set out) threat of further retaliation by the US, this sort of enforcement is sporadic and not very effective, at best. This just doesn’t sound like “law enforcement” to me.

  10. To GEOFFREY MANNE:

    Consider two cases. In the first one, we start with the United States’s hatred of Fidel Castro. So we bar all trade between the US and Cuba. But we refrain from doing that which we have the power to do, namely, to blockade all Cuban ports against trade with all other countries.

    In the second case, we blockade Southern Rhodesia, before it became Zimbabwe. (Other nations joined in the blockade, but that is not necessary to my point.)

    Why did we blockade Southern Rhodesia but not Cuba? Certainly it had nothing to do with our military power. Indeed, the difference from an IR theory viewpoint is inexplicable. But to an international lawyer, the difference is clear. Southern Rhodesia’s apartheid system was a continuing violation of a basic rule of international law (the rule of non-discrimination). A blockade was a proportionate response to this delict. (But bombing Southern Rhodesia would have clearly been a disproportionate response and hence would be regarded as a delict.)

    But there was no significant rule of international law that Castro was violating. He might have been violating the inchoate rule proposed by Professor Thomas Franck that a government must be “democratic.” But I don’t think the international community, and certainly not I, regard this as any rule of customary international law. (The customary rule, as Professor Fernando Teson shows, is the rule against tyrants. Given the money that Castro poured into elementary education and health care for the masses in Cuba, he can hardly be viewed as a tyrant.)

    Since Cuba, unlike Southern Rhodesia, was not commiting a delict, it would have been illegal for us to blockade Cuba.

    Why didn’t we do it anyway? Why didn’t we flat-out violate international law and blockade Cuba? We certainly had the military means to do so.

    Many poliltical scientists, with their focus on power, fail to see the intricate web of restraints upon state activity that we call legal restraints. I claim that the US calculated that it would be more costly to violate international law by blockading Cuba, than to obey it. Violating it would be a delict that would open us up to sanctions of all kinds.

    But let’s put my claim aside. I can rest my case on what a political scientist would regard as an anomaly. I can ask the question, “What was it that inhibited the United States from blockading Cuba?” Unless the political scientist can answer this question without coyly slipping in references to law (such as “legitimacy” or “rightful authority”), then I think that the matter is unexplained from a polysci point of view. If I am right about this, then political science is an incomplete theory of international relations. To complete the theory we need to introduce international law.

  11. Prof. D’Amato:

    Your example of US politics re: Cuba vs. Southern Rhodesia proves nothing whatsoever. While political science may be an incomplete theory of international relations, at least it tries to employ coherent scientific methodology. Merely pointing to two contrary examples does not a proven point make. The problem of intervening variables rears its ugly head. I can think of, just off the top of my head, at least 50 other possible reasons for why the US would choose a different course of action towards Cuba than it would S. Rhodesia. Domestic politics, expense, possibility of retaliation, audience costs, and international politics, just to name a few. If your theory is correct and sufficient, then how does it explain the failure of the US to apply sanctions and blockade South Africa? The difference must have to do with the sort of intervening variables I mention above. Presumably, the international laws dealing with Rhodesia and South Africa were more or less similar, and yet vastly different outcomes were produced. Law had little, if anything, to do with these results.

    International law may, as you do point out, engender international sympathy and create a convergence in opinion. However, claiming that law and law alone can explain the differences in US foreign policy choices is incomplete at best, and naive at worst.

    And even if your argument is correct, you have now shifted to arguing that international law does little more than provide a moral veneer by giving justification to a state action. That’s exactly the point I made in an earlier post and that Prof. Manne makes above. No one disputes that “law” can create a normative focal point — even states like Syria and Iraq seek to justify their aggressive actions in terms of international law — but if “international law” is to be law in the real sense of the word then it must be more than a justification for state action.

    As you describe it, international law is only upheld when individual states choose to create some sort of sanction to keep other states in line. Thus, “the law” become capricious, unequitable, and unjust. If domestic law were this way, and people’s access to justice depended not on a central authority but the whims of others, we would call it anarchy. Which of course is how we political scientists describe the international system.

  12. Professor D’Amato queries “Why, if I am stronger than my wife, it is she who does what she will?”

    I’m not going to touch your domestic problems with a ten foot pole. ;-) I’ll only note there’s more aspects to strength than mere physicality.

  13. Exactly. Like the strength that comes from being law-abiding and just. Which all goes to make your opening statement a tautology.

  14. Professor D’Amato states “Exactly. Like the strength that comes from being law-abiding and just. Which all goes to make your opening statement a tautology.”

    I beg to differ. My opening statement obviously referenced the Greek view as to relations between strong and weak city states… but if that qualifies as a tautology within this discussion, then the strength you reference in response — moral strength and self-satifaction of upholding one’s view of law — is altogether in a different category.

    While moral strength may provide a foundational basis for other strengths — of character, for fortitude to stick with a difficult task, for willingness to rectify perceived injustices — it has little direct bearing beyond such matters on conventional notions of national strength.

    I think you’d agree by any conventional measure that China is a force on the world stage. Yet, this perceived power has little to nothing to do with any objective view towards China’s sense or projection of “being law-abiding and just.” Does that make China weak? Judging from responses by other world powers it certainly doesn’t appear to have any measurable effect.

  15. Prof. Weinberger:

    I understand your argument, but I do not understand your point – are you trying to say that international law is not law at all, or that it is “softer” than internal law?

    It is a given that because international law is addressed to sovereign states as its principal subjects, as opposed to internal law, which is addressed to individuals, international law is less enforceable than internal law. That does not mean that it is not enforceable *enough*.

    The problem is that you are comparing an ideal notion of internal law with the actual notion of international law. The mighty can always escape the constraints of law, even when that law is imposed by the state with its monopoly on physical force. I will admit that international law is not as enforceable as the internal law of the United States or the internal law of Germany. But would you really that even in these systems a Bill Gates and a John Smith would get the same treatment?

    On the other hand, international law is much more enforceable than, say, the internal law of Paraguay, Egypt, India, or Serbia.

  16. Marko:

    Good questions…but you must be careful to avoid creating a straw man here. No one is arguing that domestic law is perfect and always equitable and just, nor is anyone claiming that international law doesn’t exisit or never matters. Rather, the point is a finer one. Domestic law, if it functions (more or less) well relies on a third power (the government) which enjoys a monopoly of force and a perceived legitimacy or mandate to use that force to uphold the law. International law has neither of those things.

    Thus, international law is only upheld when states — those actors that are supposed to be subject and bound by the law — choose to do so. Therefore, the Kosovars get protection but the Rwandans or Darfurians (I doubt that’s the right term) do not. Why? I don’t believe it’s due to racism (although I’m sure some people do), but rather because the Balkans, in the middle of Europe with political ramifications for Russia, Germany, etc., matter in a geopolitical sense, while African people do not. So, since other states care about the Balkans but not about Africa, Kosovo gets protected and Tutsis and Sudanese get slaughtered. Law simply can’t exist if it is that capricious.

    True, law is not perfect in the US, or any other country for that matter. But at least John Smith has access to the same legal system as does Bill Gates. If John Smith has been harmed, he can file a charge, sue, or do whatever the law allows him to do. And, as Enron and the other recent criminal trials against the CEO crooks show, the little guy can win and justice can be served. What hope of obtaining justice do the victims of Darfur have? And, whatever hope they do have doesn’t come from appealing to the UN or “the law”…it comes from hoping that at some point the US will decide that it is in the American interest to stop genocide. Or look at Zimbabwe, where Mugabe is bulldozing slums and exiling the poor into the countryside where there will be an inevitable famine. Where is the law to help them? Who can bring charges? What police or army will enforce any findings?

    Finally, imagine a domestic policy where the law functions as does international law. Where the laws are interpreted and upheld not by an independent judiciary with lawyers on both sides, but by the very actors that the law applied to? Where people could only gain access to the courts if enough other people sympathized with them? That’s the state of international law…it’s a fundamental theoretical difference. And this is the point I’ve been making all along.

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