Binding on All States All of the Time

The power of international law comes from our belief in it and the purposes it serves: the promotion of peace, human rights, prosperity and the natural environment. Beth Simmons in her thoughtful and well-written post suggests that we need empirical evidence of this belief. There is, however, plenty of evidence—indeed, the evidence is overwhelming, if not categorized and precisely quantified.

We know that government officials and officials of international organizations accept international law as binding law because we see it in their actions—agreeing to 50,000 treaties, membership in thousands of international organizations, participation in 200 cases at the ICJ and PCIJ, in thousands of cases in human rights courts, in mediation, negotiation, and arbitration over ever possible right or claim relevant to states—and all in terms of international law. And these officials know there are sanctions for violating international law.

If you were to ask the proverbial man on the street whether he has human rights or his country has inviolable national borders—most would say yes and know these are legal rights from beyond the state itself. One of the ironies of the “realism” of political science is that all this reality does not fit their paradigm so they ignore it.

This is not to say that all this belief translates into perfect compliance—plainly not. The work of improving law compliance goes on in every legal community.

This is also not to say that there is no point in developing empirical methods along the lines Beth indicates. Plainly, well-conducted survey research, for example, can help us to better understand the world we live in. Empirical data can be useful, in contrast to the construction of overly simplistic artificial models. (Even at the height of the Cold War, the world could not be construed as consisting of “Country A” and “Country B.”)

The results of such models in Goldsmith and Posner’s The Limits of International Law are that closely negotiated bilateral treaties are binding—a nation’s leader should believe those are the law; in other cases, he is not bound. This is the sort of advice ambitious national leaders wish to hear. (And, of course, this situation differs very little from that of an ambitious corporate attorney telling the CEO what he or she thinks the CEO wants to hear.) They are told they can have their cake and eat it. But it cannot work this way–we either believe in the system as a whole or none. Humanity has basically chosen since the rise of the state system for a general system of law—binding on all states all of the time.

Our new president-elect appears to be a pragmatist, not an ideologue. That bodes well for the likelihood he will listen to accurate advice about the reality of international law and what it can do for our country and our world.

Thank you for letting me discuss The Power and Purpose of International Law with all of you this week—I am gratified by the amount of consensus around the book’s central theory.