Posner: Don’t Expect Much from a New President When It Comes to IL

by Peter Spiro

From Convictions, his argument that a Democrat president won’t show any more respect for IL than Bush has, paired with an engaging episode of bloggingheads.tv with Heather Hurlbut (for those of you with busy lives, you can listen to Eric and Heather talk really fast with the new 1.4x function!). Eric takes his usual skeptical view of international law, arguing that while a Democrat would undoubtedly play up the happy talk it wouldn’t make much difference in terms of real policy.

Maybe, maybe not. I see the argument here, and it’s consistent with history. Democrats haven’t been particularly supportive of IL when it comes to expending political capital (eg, Bill Clinton didn’t go to bat very hard with unratified human rights conventions). Republicans haven’t had a monopoly on sovereigntist thinking.

But perhaps things have changed. Even Bush himself seems to be knuckling under to IL, (obviously) not for any love of it, but simply because the cost-benefit calculation favors compliance. That’s a big part of the Guantanamo story, as everyone casts about for a way to shut it down (including proposals from the likes of Jack Goldsmith and Matt Waxman to do it under cover of a new international legal regime). Cooperation on other fronts is urgent, and that cooperation will be more likely from a new administration (perhaps as much so from a McCain administration, on a Nixon-in-China basis). I agree with Heather Hurlbut’s assessment that even ICC membership would be plausibly on the table, albeit only in a second term.

One thing I found puzzling in Eric’s thinking here: in the diavlog, he suggests that Bush’s rhetorical posture towards IL has itself been a mistake: “Bush should not have shown so much contempt for IL.” But if IL doesn’t amount to much, what difference does it make if you show contempt for it? And why should there be any consequence to that posture, in the same way that showing contempt for jaywalking laws doesn’t cause anyone any problem? Do we need a theory of non-happy talk by way of an answer?

Update: A reader points me to this answer, from a 2000 paper by Goldsmith & Posner on moral and legal rhetoric in international relations:

Because [international] talk is cheap, no one will be influenced by a nation’s claim that it is civilized, that is, no nation would adjust its prior belief about the probability that the speaker is civilized. But a nation that failed to send this weak signal would reveal that it belongs to the rogue type. In equilibrium all nations send the signal by engaging in the appropriate international chatter. Failure to engage in the correct form of chatter would reveal that one is a rogue state. In this pooling equilibrium everyone sends the signal because no one gains from failing to send the signal. Talk does not have any effect on prior beliefs about the likelihood that the speaker is civilized, but it is not meaningless, because failure to engage in the right form of talk would convey information that the speaker is not civilized.

George Bush, not civilized.

http://opiniojuris.org/2008/04/21/posner-dont-expect-much-from-a-new-president-when-it-comes-to-il/

One Response

  1. I actually agree with Posner except I put it another way. If Americans continue to acquiesce in the US violating basic rules of international law in areas other than trade, then that is what we will get. The interests have enough interest in trade law that they seem to be more compliant in that arena.

    Best,

    Ben

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