Cheng Book Roundtable: Why International Legal Theory Matters

by Tai-Heng Cheng

Americans are furious.  Officials are out of touch with the rest of us.  If we thought about it, we should be angry that officials do not take international law more seriously.  That is just another way that the people we send to Washington do not understand what we really need.

American workers whose retirement funds hold GM stock should want to be sure that international law protects GM’s ability to sell its cars and trucks in China.  In February, when GM sold a record 250,000 Buicks, Chevrolets and Cadillacs in China, its stock price rose almost 10%, helping to repair the retirement accounts of workers across America.

Military families should want to be sure that the U.S. government obeys international law.  We have over 2 million active and reserve military personnel.  When they come in harms way overseas, America’s military sons and daughters are more likely to receive the protections of international law if the United States extends the same protection to its enemies.

So when President Bush’s U.N. ambassador John Bolton argued that international law is not law, and that it is instead just a series of political arrangements, that was an early warning that our officials live in a different world than the people they are supposed to serve.

The Obama administration is not much better.  The State Department believes that international law is law, but it argues that it is legal for President Obama to use drones to kill suspected terrorists, even if innocent people around them are also killed. Even if international law is law, what good is it if our executive branch claims that it permits officials – not judges – to sentence people to death, including U.S. citizens, and to execute them in foreign countries?

It is not all bad in Washington.   But here it gets really confusing.  Our elected leaders seem follow informal international arrangements that are most certainly not international laws.  Take the BASEL III Accords.  Basel III requires banks around the world to hold more capital. But it is not a treaty.  Treaties are made by nation states through their consent.  BASEL III is an agreement among central bank governors.  Last I checked, Federal Reserve Chairman Bernanke spoke for neither the U.S. President nor Congress. Even though BASEL III is not a treaty, the U.S. government has begun to implement it.

Isn’t it ironic, don’t you think, that officials rain on international law, but follow informal international arrangements? What exactly is international law and what is its proper role in international problems?

My latest book, When International Law Works: Realistic Idealism after 9/11 and the Global Recession, offers a way to make sense of it all.  It helps to explain why Harold Koh, the State Department Legal Advisor, argues drones are lawful, but in his former life as an academic, Professor Koh, the human rights scholar, might have taken a different view.  The book also explains why bank regulators follow BASEL III even if it is not strictly law.

Crucially, the book is an attempt not just to explain international law, but to guide decisionmakers about what to do about it.

I will leave the details of my thesis to later posts.  For now, I offer thanks to Opinio Juris and the Roundtable contributors for their thoughts, and to you, the reader, for taking time to follow and to join this discussion.

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