Varieties of International Law Skepticism

by John McGinnis

My purpose here is to provide a brief taxonomy of recent international law skepticism.

1. The Rational Actor Critique: In their book, The Limits of International Law, Jack Goldsmith and Eric Posner express skepticism that customary international law often influences the conduct of states. States are rational, self-interested actors and it is difficult for custom to reflect stable equilibria that reflect their continuing interests. Customary international law has much less scope than widely thought, and even when it exists, it is usually unstable.

2. The Political Process Critique: The process by which the content of customary international law is determined is nondemocratic, and provides little reason to believe that customary international law will maximize welfare, at least in comparison to judgments by the democratic branches of the political branches of the United States. This is obviously true when international law concerns matters with insubstantial spillover effects among nations, like the death penalty. Even when there are spillovers, the United States seems to have better incentives to provide international public goods for the world than the process which creates international law. Ilya Somin and I make this argument in Should International Law Be Part of Our Law?

3. The Sovereignty Critique: In a world where there is no collective enforcer of collective security, international law rules that seek to prevent a state from defending itself are dangerously utopian. On such fundamental matters, peace is more likely to be maintained if every sovereign (and the United States in particular) retains the discretion to act for itself. Jeremy Rabkin makes such points in his book, The Case for Sovereignty.

If the first critique proves accurate, one might believe that the second and third are largely superfluous, because customary international law may have little influence. Nevertheless the second and third critique might still be important if judges attempt to incorporate international law into an effective domestic system. The second critique might be sympathetic to international rules forged by treaties when these treaties are democratically ratified. The third critique, in contrast, might well reject being bound by treaties on some subjects. The second critique might also welcome the application of international law in dictatorial or totalitarian systems, on the theory that norms generated by international law are superior to the norms generated in such political systems. I invite readers to offer other forms of skepticism, regardless of their agreement or disagreement with their content.

3 Responses

  1. John,

    On 1) as I said when I rejected the soundness of their reasoning at the time, the Goldsmith and Posner book on the Limits of International Law simply steps over the ENTIRE European construct. It is not serious or credible as a work.

    On 2) in a system based on states with a variety of internal forms the nondemocratic critique is a canard. Democratic processes are not guarantors of maximizing welfare (do I have to speak about segregation in the south and slavery?). The point is that the search for the general practice of states and opinio juris takes into account the variety of forms of states. In the considered wisdom of all the states including the United States in acceding to the Statute of the ICJ we recognize customary international law as law to be applied. Clearly in that bargain states consider that such law has some value to them. You take a far to United States centric view of international law. What about customary international law as a public good that all states are providing to each other – not just a US to the world phenomemon.

    On 3, what international law rules are those that prevent a state from defending itself? Article 51 of the UN Charter enshrines that idea. Customary International Law also enshrined that. Rules that say you can not massacre civilians and all that in the laws of war may prevent a state from massacring civilians. That is because such massacres are considered barbaric and international law (treaty or custom) recognizes them as international crimes. I know of no rule that prevents a state from defending itself. What international law might do is say that you can not just say and do anything and call it self-defense because otherwise states mask aggression with self-defense. We saw that in WWII and it is a bad idea. Trust us is not good enough in an international system of states.

    What I feel you are really saying is that you want a world where might makes right. That is certainly your prerogative to preach but my sense of history is that who is mighty and who is not evolves overtime and pushing for stable rules helps to mediate those dynamics in a way that preserves some peace and order. We had revolutionary regimes in the Soviet union and China that burned out of their fervor to step outside of international law. I expect that will happen also to those who have been for the past 6 years eagerly trying to spread a weird kind of nihilism. The end game of that is in the sands of Iraq right now.

    At a time of massive attack on international law by esteemed persons like yourself in the United States (which is to the dismay of many in the United States and around the world) I fail to see the utility of encouraging a skepticism.

    Obviously, international law is a human endeavour and so must be imperfect and have an imperfect history. But so what? The point without being utopian is to articulate from state practice and sense of obligation rules that have meaning between states. Rules provide some stability or at least the appearance of what is acceptable state behavior.

    Might I ask why is there such an unwillingness to even recognize horizontal enforcement between states or vertical enforcement within a state of international law norms? Americans who say torture is against the law as a matter of international law can make the US comply with that rule whether or not it is an internal American rule through the democratic political process (voting out torturers and prosecuting those who torture). Similarly, when the US sought assistance with the Iraqi High Tribunal no other states were willing to help. Why? – because the invasion was considered in violation of the UN charter. Refusal to help or modest assistance are examples of resistance to what is considered an illegitimate and illegal act. I would think these are simply unremarkable points to make.



  2. John

    I think this is a very useful breakdown. The way you present them, all three are capable of empirical refutation. That is, they make claims about how the world works which may or may not be true (or may be true now but less true into the future).

    I think that probably points to some variant of the sovereignty critique (at least in the US context) which is more formalist in its assumptions, and which holds that even if the development of and conformity with robust international regimes would make for a better world, it’s not available as an option where such conformity would violate constitutional constraints.

  3. Apropos your invitation: Where does Marxian-motivated skepticism like, most recently, China Mieville’s Between Equal Rights: A Marxist Theory of International Law (2005), fit in this taxonomy?

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