Binding on All States All of the Time

by Mary Ellen O'Connell

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.

http://opiniojuris.org/2008/11/20/binding-on-all-states-all-of-the-time/

One Response

  1. Forgive an intrusion.

    “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.”

    Doesn’t this understanding of the power of international law seem the slightest bit talismanic? What certainty can there be that international law must necessarily tend to the promotion of peace, human rights, prosperity, and the natural environment – goods as we understand them?

    The post seems to assume an identity between ideally good causes and international law.  The man on the street may indeed believe that he has certain rights which are his inherently, which the state might infringe but can never obliterate – because they are “beyond the state.”  But a belief in Goods which are inherent in nature, fundamental, and above the state is not the same as belief that these things are identical with international law.

    Has written international law never been pernicious, never oppressive, never had perverse consequences?  We all may agree that a natural law of ideal and perfect goodness exists (without agreeing on its exact content), but our belief and allegiance to such does not necessitate allegiance to the present body of international law and its institutions.  There is no necessary identity between the two.

    It seems to me, in fact, that the belief that there is an identity (or near-identity) is sustainable if and only if one also believes that oneself and like-thinking others will remain in eternally assured possession of the power to define what international law is.

    Well, a large, vocal, and growing segment of the world believes that there is a basic human right never to have to hear one’s religion publicly criticized, believes that the criticism of religion ought to be censored, perhaps even criminally sanctioned.  There exists a not inconsequential movement to enshrine this supposed right in international law, a movement that, one must admit, has not been without its successes.  Indeed, it may well triumph.  And if it does – if it does – then such institutions of international law as then exist will be turned to its enforcement.

    Where then the identity?  Where then the boundless confidence? 

    The world does not agree on natural law.  The western tradition is not assured eternal possession of the power to write international law or work the levers of its institutions.  That ought to give us pause.

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