20 Nov Judging the “Power” of International Law
What will it take to engage in a constructive debate about the power and limits of international law in international affairs? One answer is a book like Mary Ellen O’Connell’s, which makes a compelling case that not only scholars but laypersons and decision makers should think deeply before they disparage the international legal system in its entirety. Mary Ellen’s book is a frontal attack on the contention that there is no way to enforce international law. On the contrary, she shows, there is a range of options, from collective measures to unilateral measures to judicial approaches, international and local. Indeed, the roots of these enforcement mechanisms run especially deep, as her historical account well shows. The bottom of this study is that the existence of sanctions, which come in many forms and with careful delimitations – themselves illustrate the seriousness with which actors across the world take international legal obligations and embrace “the power and purpose of international law.”
Mary Ellen’s book is an antidote to a line of thinking with a long pedigree, but which has been well-captured recently in Jack Goldsmith and Eric Posner’s The Limits of International Law. The danger (Mary Ellen does not disguise her concerns in this regard) is that arguments about international law’s weaknesses can and have been used to justify its circumvention and denigration in the conduct of some states’ foreign policies. Her strategy is to bolster international law by demonstrating that the international community has devised rules for the appropriate sanctioning of law breaking. This is what all communities – domestic and international – when they value rules. The elaboration of these rules over the centuries is evidence that the international community values peace, security, prosperity, respect for human rights, and protection of the natural environment, and wants law to advance these common goals.
One question that comes to mind is how can we evaluate the claims that are made in this book? Mary Ellen (rightfully, in some cases) criticizes Goldsmith and Posner for their occasional misreading of history and misrepresentation of international law itself. But is there a way to know whether the account provided in this volume is better? Neo-conservatives and liberal internationalists alike have appealed selectively to historical events and ideas as well as to legal decisions and standards to construct their case for the weakness and irrelevance (non-existence?) versus strength and importance of the international legal system in international affairs. One example is regularly countered by another. Mary Ellen claims that the existence of sanctions alone shows that actors who matter take international rules seriously. I suspect that Jack and Eric would retort that sanctions are yet another justification that the powerful clothe in some-time principle to further the goals that they desire to achieve – rules or not.
My own position is that we will not as far as we might on this debate over the power/weakness of international law without some discussion over what constitutes evidence of law’s strength. Can we reach any form of agreement there? Would the neo-cons agree with Mary Ellen’s criteria – that the strength of international law is evidenced by its acceptance in the international community? Or would they reject it as evidence of nothing more than the whining of the weak? Can’t we have some discussion about what counts as evidence in these debates, and a common understanding of at least a notional criterion for reaching our judgments about the power of international law?
Once we have had these debates, it will be important to design and execute systematic research that might be credible across camps. If international law’s detractors want to show that law is not enforced, they should establish and defend a criterion – a minimum threshold, for instance – below which any reasonable person would reject the claim that the international community is willing to defend its common aspirations. Selective anecdotes should no longer suffice, for as Mary Ellen and a host of others have noted, law violation alone is hardly evidence of law’s unimportance. We don’t believe this in the domestic context, and there is no better reason to accept this as a critique of international law. The supporters of international law – and I pose this as a challenge to Mary Ellen and others – must eventually go beyond their equally anecdotal claims that “people everywhere believe in law, believe in this alternative to force, as they believe in higher things” (p. 370). If the truth be told, we must admit we know very little about what people really believe when it comes to international law and its importance. We observe behaviors and we invent motives, or we naively believe the motives we cull from legal or other justifications. To really find out what people believe is the power and purpose of international law would indeed be at the frontier of research, and would engage not only legal scholars but psychologists, sociologists and political scientists for many years to come.