Brad Roth Demurs: ‘This is a fundamental mistake’, he says …

Brad Roth, an old friend, and well known to many OJ readers as law and political science professor at Wayne State University, delivers a heck of a punch with his new paper, set to appear in Santa Clara Journal of International Law (2009), but up in draft at SSRN, “Coming to Terms with Ruthlessness: Sovereign Equality, Global Pluralism, and the Limits of International Justice.”

This article pulls no punches and must have caused a bit of a stir when it was presented at the Santa Clara conference and, as I think I remember hearing, at the ASIL meeting this past spring.  I tried to say something similar in an essay this year in the European Journal of International Law, but I can’t say I said it with as much clarity and vigor as this extract from the article (emphasis added and footnotes deleted):

(I should also add, because we here at OJ are a polite bunch, Brad has told me he welcomes disagreement with this piece and comments should anyone want to make them, and I expect that many OJ readers do disagree.  But this might raise the old academic problem – how do you disagree with something in a couple of paragraphs where the disagreement seems to run much deeper than that?  I don’t know that it goes to fundamental world views – Brad is raising a set of concerns that I would express not so much as the division between idealists and realists, for example, but between one version of idealism and another that places greater weight on certain values and evaluations of circumstances than other versions would.  But as to how to answer the ‘ships passing in the night’ problem of commenting where the differences run very deep – I don’t know how to answer that question and never have been able to do it well.  But I do think that KJH, Gregory Gordon, and others around here would disagree with Brad, and for that matter, on quite different grounds, I think Eric Posner would disagree; I have some disagreements, too (as someone who does sign onto R2P at least sometimes), but they are much more disagreements of degree than kind.  But please feel free to … disagree away!)

International law represents – not exclusively, to be sure, but vitally – an accommodation among entities prone to conflict rooted, not only in competing interests, but also in systematic and profound disagreement about justice. Political conflict’s much-lamented intractability is largely owing to its moral component; contestants are least willing to back down from positions taken as a matter of principle. Although human beings rarely disagree about the most fundamental moral principles in the abstract (e.g., “murder is wrong”), they all too frequently disagree about the application of those moral principles to unmediated struggles over the terms of public order (e.g., “one person’s terrorist is another’s freedom fighter”). While the specific configurations of contemporary international conflict can be ascribed to historical contingencies of the “Westphalian” state system, the animating tendency toward moral disagreement is endemic to the human condition.

In the absence of commonalities of substantive moral principle, participants in the international community need to find common ground on a different plane. The imperative to honor agreements – and other forms of accommodation on which others are led to rely – is not reducible to a pragmatic concern of the “repeat player” to maintain a reputation that will enable her to obtain cooperation on subsequent “plays,” but is a duty, owed to the community, to maintain an expectation of compliance with established institutions. Moreover, “honor” itself is not without moral significance, as it reflects integrity and respect for the other. One honors agreements made with the unjust, mostly because it is irresponsible to do otherwise when morally important interests depend on maintaining one’s own and others’ ability to trade on the convention of agreement in similar future contexts, but also because treachery, even when employed against actors who are themselves immoral, incurs a moral taint. The point is not that considerations of extraordinary injustice, even unilaterally conceived, may never override the duty to honor one’s formal commitments. It is that positive obligations may be morally binding even where they demand forbearance from the single-minded pursuit of one’s unilateral moral ends. Whatever the exceptions, they do not swallow the rule.

Thus, however paradoxical it may seem, restraint on the pursuit of justice is not only central to the mission of existing international law, but also central to any sound theory of international political morality that pertains to the development of international legal institutions. Unilateral impositions, deriving from a particular, empowered conception of universal morality, are more likely to be the problem than the solution. What Prosper Weil stated a quarter-century ago remains valid today:

“At a time when international society needs more than ever a normative order capable of ensuring the peaceful coexistence, and cooperation in diversity, of equal and equally sovereign entities, the waning of voluntarism in favor of the ascendancy of some, neutrality in favor of ideology, positivity in favor of ill-defined values might well destabilize the whole international normative system and turn it into an instrument that can no longer serve its purpose.”

Interestingly, among human rights-oriented scholars, this argument has considerable (though by no means universal) appeal as applied to unilateral threats and uses of force, and perhaps even to unilateral coercive economic measures such as secondary boycotts. Yet some of the same scholars who embrace restraints on those categories of exertions by individual states or coalitions of the willing” appear to see national courts’ exercises of extraordinary extraterritorial jurisdiction, nullifications of the immunity of foreign officials, and creative circumventions of nullum crimen sine lege as not only exempt from the pitfalls of such unilateral executive measures, but actually as a peace-building and law-developing alternative to such executive measures.

This is a fundamental mistake. Extraterritorial prosecution of foreign-state actors and forcible impositions upon foreign political communities are both conceptually and practically intertwined. Because the legal limitations on the two derive from the same jurisprudential concept, the likely consequence of the loosening of constraints in the former realm will be the erosion of constraints in the latter.

International legal constraints on the use of force are predicated not on a principle of non- violence, but on a principle of respect for a foreign state’s authority within its boundaries. To put the point colorfully, but without substantive exaggeration, the right against coercive intervention is the right of territorial political communities to be ruled by their own thugs and to fight their civil wars in peace. It reflects a pluralism that self-consciously sacrifices one set of genuine moral imperatives to another. It favors the creation and maintenance of a stable platform for peaceful and respectful accommodation among territorial political communities – which may be ruled, for the time being, by governments bearing incompatible conceptions of political morality – over licensing unilateral projections of power across borders in service of what might objectively be a just cause.

Although considerations of human rights may ground episodic exceptions to the non-intervention norm, human rights do not constitute a general qualification of the norm; rather, a state’s right against dictatorial interferences in its internal affairs presumptively withstands the state’s own violations of international legal norms, including human rights norms. To the extent that extraterritorial jurisdiction licenses the vilification of foreign state officials, it has the potential to undermine the platform that undergirds peaceful and respectful international relations. International efforts to secure the bases of human well-being routinely require the cooperation of political leaders to whom significant human rights violations can be attributed. Even recourse to force, both international and internal, must often be directed toward creating the conditions for a compromise that will respect the honor of the opposing party, notwithstanding the opponent’s ruthless acts. Moreover, where ruthless acts have been committed with substantial popular support, particular leaders cannot be singled out for vilification without impugning underlying constituencies, thereby further complicating efforts to establish cooperation going forward. These are morally important reasons to forbear from the pursuit of retributive justice across borders, even though countervailing considerations may outweigh them in a limited set of circumstances.