A Change (Back) We Can Believe In

by Mary Ellen O'Connell

President-elect Obama’s campaign for the presidency was all about change—change we can believe in. No doubt the readers of Opinio Juris have a long list of topics on which they wish to see change: Guantanamo Bay, CIA interrogation, Iraq, Afghanistan, the Middle East, Congo, Darfur, weapons proliferation, the global environment, the global economy, etc. But even if the new President manages positive change in these areas, to avoid the same type of mistakes that plunged the current Administration and the nation into so much trouble, we will need a more basic change: change back to our traditional deep knowledge of and deep respect for international law.

It seems many in our foreign policy elite—Democrats and Republicans alike—would not be able to explain why international law is binding law. They might be able to talk about consent to treaties, but not why consent binds or why customary international law binds, or even describe the general principles of international law. The current state of knowledge about international law contrasts with the decades before the 1960s when our Secretaries of State and their legal advisers, our judges, our law schools, even much of our public, had deep expertise and commitment to international law.

Many of our top legal and policy minds don’t even make the distinction between international law (law at the inter-state level) and foreign law (law of another country). Indeed, foreign law is not binding on the United States. However, international law is binding on the US, be it a treaty to which we are a signatory, a decision of a tribunal or court before which we have appeared, or those basic rules of customary international law and general principles to which all nations are held.

The Power and Purpose of International Law offers an explanation of how we lost that knowledge and commitment in the hope of showing the way back. As Elihu Root said about the purpose of diplomacy: following international law can keep the nation out of trouble. More than that, international law offers the way forward in the areas of security, human rights, the economy, and the environment. It is part of the American tradition and raison d’etre for this nation to be a champion of the law, and that tradition had always included international law.

An important part of the story of our disconnect with international law can be traced directly back to Hans Morgenthau, a political scientist at the University of Chicago. From 1948 on, he championed a myth that international law cannot bind the United States in the most important questions of national security because international law lacks effective sanctions. By the 1960s, his views were tremendously influential, so that while Louis Henkin’s How Nations Behave helped stem the tide against international law, it did not rid the foreign policy community of the deep belief that international law is not really law for important matters.

Morgenthau was plainly wrong about the role of sanctions in law—his personal history offers explanations that account for this error. The flawed logic of Morgenthau and his adherents is part of the explanation of how the Geneva Conventions, the Convention Against Torture, and the International Civil and Political Rights Covenant came to be so easily dismissed after 9/11. It is imperative that our country not be held hostage to his erroneous views any longer, a problem exacerbated by the turn to a strong focus on the U.S. constitution in our law schools. This turn is further explained by the rise of positive law theory as the only explanation of law. Furthermore, a number of the scholars who are attempting to write about international law and the U.S. Constitution are generally very knowledgeable about the Constitution but know little about international law.

Law’s authority—all law—is posited in acceptance, Kelsen’s Grundnorm. Evidence of our acceptance is the legal sanction. The community sanctions violations of law with coercive measures—unlike the way communities deal with social or moral violations. International law has and always had sanctions for law violation, which provide evidence of what the international community understands to be law.

The Power and Purpose of International Law takes on this central myth about international law today: that it is not really law because it has no means of enforcement. The three chapters of Part I present the very real enforcement means of international law enforcement, along with a discussion of theory explaining the actual role of enforcement in establishing law’s authority. Part II’s six chapters present the enforcement system in action, along with a discussion of its detailed rules.

The Power and Purpose of International Law takes advantage of new developments in positive law, natural law, and process theory to better explain to our elected officials, judges, and students exactly what international law is and why we are bound to obey it. It offers a way back from the view that international law cannot bind the president should he, for example, decide to authorize the torture of a human being.

The next post will discuss the superiority of positive law, natural law and process theory when combined in explaining the authority and functioning of international law over theories such as rational choice.

http://opiniojuris.org/2008/11/16/a-change-back-we-can-believe-in/

One Response

  1. Thanks for contributing here Mary. Your book is a very welcome and timely reinvigoration of the debate which will hopefully arrest any further decline amongst the US academy and policy elite – who have tended to view IL as an almost sub-legal, foreign category of political discourse.

    I’m very interested in your views on how the alleged paucity of the positivist account of law helped in this decline. I’m not sure I yet fully appreciate the argument – though I’m willing to learn!

    To me, there does seem to me to be room in the positivist account for hearty support of emergent international law norms. Indeed, I don’t think you could say that hard-nosed hard positivist Joseph Raz is in any way hurting IL in my understanding. He conception seems compatible AFAIK.

    So could you explain in your subsequent post, how positivism is destructive to IL?

    IL obviously has this descending / ascending dichotomy which tends to be parsed as a distinction between natural law/positive law. Is that a correct view though? Formative IL scholars like Grotius obviously saw the crystallisation of fundamental norms as coming from somewhere.

    So is a natural law account inescapable to have a full appreciation of customary international law jus cogens for example?

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