As I intimated in my introduction to this Roundtable, I was deeply impressed by When International Law Works (WILW).  Professor Cheng’s accomplishment is to make legal theory — even international legal theory – seem accessible, relevant and important.  This may not sound like much, but I challenge you to work your way through Austin, Hart or McDougal/Lasswell  and Koskenniemi and come up with a discussion as elegant as that which can be found in Chapter Two of WILW.

Professor Cheng positions himself as “moderate” exponent of the New Haven School’s policy-oriented approach to international law.  Rejecting efforts to offer a purely conceptual theory of international law, he argues that political decisionmakers should follow “prescriptions” (rules) according to procedures accepted by other decisionmakers.  In many, but not all, cases, this means that decisionmakers should follow formal “international law.” This sort-of-commitment to follow formal international law is undergirded by a moral commitment to world order and human dignity.

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.

Opinio Juris is very pleased to host a Roundtable this week on Professor Tai-Heng Cheng’s recent book, When International Law Works: Realistic Idealism After 9/11 and the Global Recession (Oxford University Press).  The Roundtable will proceed throughout the week and feature a fascinating and diverse group of discussants.  Professor Cheng and I will kick off the discussion today, followed later this week by professors Ralph Wilde, Robert Howse, Chester Brown, and Hari Osofsky.  I will start by introducing our author:

Tai-Heng Cheng has been Professor of Law at New York Law School, where has taught since 2006. He is Co-Director of the Institute for Global Law, Justice, & Policy, and of the New York City International Economic Law Working Group. Professor Cheng has authored almost forty books, articles and essays on international law, international dispute resolution and international investment law.  His scholarship has been cited and relied on in the American Journal of International Law, the Yale Journal of International Law and the Harvard Journal of International Law, as well as by judges and counsel in the U.S. Supreme Court and federal appeals and district courts.  You can see the rest of Professor Cheng’s impressive record here.

Professor Cheng’s book is an ambitious contribution to the field of international legal theory, and, unlike many contributions to this field, the book is both lucid and insightful.  We are thrilled to have a chance to discuss his book over the next few days.

The ABA Journal has a cover story about the threat posed to island states by climate change. This is a topic we have discussed on Opinio Juris at various times. Duncan wrote at length about the Maldives; I had a shorter piece here, and there are various references in the midst of other blog posts.

The Journal article is long and covers a great deal.  Either I or some of my co-bloggers will likely come back to this at length. For now, I just wanted to post a “heads-up” and highlight some points of interest regarding sovereignty and especially the human toll of sinking states:

“A small island is likely to become uninhabitable long before it disappears,” says Jenny Grote Stoutenburg, an international law scholar who is a Ph.D. candidate at the University of Hamburg in Germany. And it is at the moment when the last remaining residents flee the last inhabited island that the state would cease to exist… [snip]

It would be unprecedented for a nation to lose its statehood because its land actually disappeared, says Caleb W. Christopher, who is legal adviser to the U.N. mission of the Marshall Islands. “There’s never been a time when a government—even a small government—has vanished without somebody else coming over and taking over and succeeding it. Peru is always Peru even if another country takes it over, or if their government changes. It doesn’t just up and vanish off the face of the Earth.”

A key issue is how those nations can seek to preserve their statehood, claims to resources and national identity when they have no actual physical homeland.

Speaking at last year’s conference, Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate, Stoutenburg advised that island nations should try to keep at least some bit of land inhabitable and populated in order to anchor their claims to continued statehood… [snip]

Island nations were advised to freeze existing maritime boundaries by basing them on geographical coordinates that will not shift with retreating coastlines.

The article discusses other possible reactions to the problem of sinking sttaes, including concerted action by states-parties to the UN Convention on the Law of the Sea (UNCLOS) to draft new rules that take into account pre-existing sovereign claims prior to the loss of territory, to the idea of a non-territorial or ex situ state:

It would be made up of citizens scattered around the globe and headed by a government that would manage common resources, such as maritime resources and compensation funds; provide consular protection; maintain cultural ties and identity; and even keep alive the possibility of reunification in a new location.

However, as a law professor who writes about problems if statehood and sovereignty, it was the next two paragraphs that really caught my attention:

Heady ideas, perhaps, but some island nation citizens came away from the conference dispirited. During one question-and-answer session, a highly emotional resident of the Republic of the Maldives, a cluster of atolls and islands in the Indian Ocean where the average elevation is only about 5 feet, insisted that island nations “cannot be and should not be sacrificed on the altar of the good life of the rest of the world.”

Acknowledging such sentiments, Jariabka of Islands First says that, on an abstract level, the imminent statelessness of island nation residents is “a very interesting, sexy topic to be writing about as an academic.” But, he says, “my perception was that when you had the questions and comments, some of the government officials, the people from these islands, were visibly frustrated because they were hoping to learn how to save their islands rather than how to best manage their eventual extinction.”

And that is a good reminder for all that interesting legal conundra for some can be life-and-death issues for many.

I’ll have more to say on these and other sovereignty issues in another post. For now, I recommend reading the Journal article as well as Duncan’s previous post.

Here’s something you don’t see every day: Oxford University is seeking applicants for the Chichele Professorship of Public International Law. Oxford’s announcement begins as follows:

The Oxford Faculty of Law is a major centre for the study of international law. We aim to build Oxford’s role in the field, as international law becomes increasingly important and complex, and more closely involved with particular areas of domestic and transnational law.

The Chichele Professorship is at the centre of the University’s strength in international law. The Professorship, which is a position of senior leadership in the discipline, in Oxford and worldwide,will fall vacant upon the retirement of Professor Vaughan Lowe QC in September 2012.

Here’s the full list of previous holders of the chair (up to Vaughan Lowe, the current Chichele Professor):

Alberico Gentili, Regius Professor, 1587
Mountague Bernard, 1859- 1870
Thomas E. Holland, 1874-1910
Sir Henry Erle Richards, 1911-1922
James Leslie Brierly, 1922-1947
Sir Humphrey Waldock, 1947
D.P. O’Connell, 1972-1979
Ian Brownlie QC , 1980-1999

Gentili, Brierly, Waldock, Brownlie, Lowe… or, to sum up, many consider this the most storied chair in international law in the world.  Vaughan Lowe gave a succinct history of the professorship in his inaugural lecture. The application information is in this pdf. Good luck.

Hat tip to Don Anton for pointing this out. (and if you don’t read Don’s Weekly Digest of International Law, you should!)

My previous post mentioned battlefield robot analogs of dogs, cheetahs, pack animals, even humans. Now behold the synchronized nanobot swarm! 

Here’s what national security analyst John Robb had to say about the tactical benefits of a battlefield drone swarm:

•It cuts the enemy target off from supply and communications.
•It adversely impacts the morale of the target.
•It makes a coordinated defense extremely difficult (resource allocation is intensely difficult).
•It radically increases the potential of surprise

Things start to get really interesting when the confluence of two technologies cause even more radical changes. Take, for example, how fabrication technology and micro-drone tech may one day allow new drones to essentially be printed out by fabbing machines.  Not there yet, but perhaps someday.

The underlying issue is that technology is changing so fast, it may be thwarting legal regulation from adequately responding to the implications of technological change. I italicized “may” because I am not certain that this is the case.

Law (and perhaps especially the common law) is propelled by metaphors.  Its timely adaptation to a new technology partially relies on whether an apt metaphor can first orient the regulatory perspective, providing a basic frame for the problem, so that a combination of legislation and judicial interpretation can then fill-in more precise details. 

For example, there were the arguments in the 1990′s (and still today…) over whether the internet is more like a broadcast medium, a mail service, or phone service. In part, the regulation of activiities on the internet has been based on applying various metaphors to different fact patterns, trying to apply old rules and, with some new legislation and interpretation, make them do new tricks. Perhaps this is all that is needed and technology has not left law in the dust.

If that is the case, while battlefield robots may present some new risks, do they actually overturn IHL as we know it? (Similarly do some of the other topics mentioned in the links, such as the implications of DNA hacking, raze pre-existing rules?) Are these actually areas where many whole new areas of substantive rules are needed, or are these examples of areas where regulatory enforcement just got alot harder?

At least regarding IHL, is technological change affecting primarily the substance of law or the enforceability of law, or both equally?  I look forward to any comments from others in the Opinio Juris community…

[The following is a guest post by Dan Joyner, Professor of Law at the University of Alabama.  Our thanks to him for contributing it.]

So, as you probably guessed from the title of this post, it’s going to be a bit of a rant. But this has been festering inside me for the past five years and I want to get it out.  I’m on a plane right now flying back from the U.S. Midwest Regional of the Jessup International Law Moot Court competition in Chicago with my team.  I’ve been the faculty advisor for the Jessup team at Alabama for the past five years. During that time, my team has competed in Miami, Houston, and Chicago, as well as in the international rounds in D.C.  I’ve gone with my team every year to each one of these venues. So I’ve seen a lot of the Jessup process, in a number of different venues in the U.S., and I’ve put in A LOT of my own time coaching my team and travelling with them. And here I mean A LOT of my own time. Many, many hours advising them as they research their memorials, then three to four per week oralist round practice sessions in the lead up to the regional.

I have noticed over the years that, at least at the regional locations we’ve been in, not many of my international law faculty colleagues have accompanied their teams as I have done. Some have, to be sure. But more often than not, their students are either there by themselves, or they are accompanied by a non-faculty team coach.  And in my anecdotal conversations with students from other schools’ teams, it is usually the case that they have not been coached seriously by the international law faculty members at their law school. I now think that these faculty colleagues in international law at other schools have been much wiser than I have in this regard.

I have learned over the past five years through sorely frustrating experience that the Jessup competition is not in fact an international law moot court competition, notwithstanding this being stated in its name. This is, in fact, simply false advertising for the competition. In reality, Jessup is just another law student moot court competition in which style trumps substance, and where good used car salesmen typically come out on top.  As such, the Jessup competition is simply not worth any serious investment of time by those of us who actually care about the substance, rigor and correctness of international legal analysis and argumentation. Frankly, sometimes I think my students could be citing to sources of Kryptonian law, and if they did so confidently and persuasively, they would be just as well off.

The clearest evidence for this conclusion is that if, counterfactually, the Jessup competition was in fact about international law, then it would be staffed by memorial and oralist round judges who themselves had a decent knowledge of international law. In my experience at all of the regional rounds in the U.S. at which my team has participated over the past five years, this has definitely not been the case…

Tomorrow, as part of its Leading Figures in International Dispute Resolution Series, the ASIL’s International Courts and Tribunals Interest Group (ICTIG) will host a talk by Meg Kinnear, Secretary General of the International Centre for Settlement of Investment Disputes (ICSID) to discuss the ICSID system for settling investor-state disputes.

The event details are as follows:

ASIL Headquarters, Tillar House
2223 Massachusetts Avenue, NW
Washington DC 20008
January 17, 2012
6:00 PM – 7:30 PM (Reception immediately following)

 You can register for the event via this page. Registration is free for ASIL Members and $20.00 for non-members.

I am delighted to announce that Lt. Col. Chris Jenks — currently the head of the International Law Branch at the U.S. Army JAG, an occasional contributor to Opinio Juris, and my very first PhD student (my colleague Gerry Simpson is his other supervisor) — has accepted a tenure-track assistant professor position at SMU’s Dedman School of Law.  Chris will be a great addition to SMU’s faculty, which already has a number of excellent young scholars who write about international law, including Jenia Iontcheva Turner, Anthony Colangelo, and Jeffrey Kahn.

Congratulations, my friend!

Foreign Policy has just published its rankings of the top 100 Global Thinkers for 2011. As expected, there were the typical assortment of statesmen, economists and activists. But what really stood out was the continued dominance of old media in the shaping of foreign policy. We may be prone to think of 2011 as the year of new media thinkers, with social media outlets giving voice to protesters that toppled dictators and transformed regions.

But for every two new media global thinkers recognized by Foreign Policy, there were three global thinkers recognized for their work in old media: television, books, and journals. By my count, there were 32 FP global thinkers recognized for utilizing traditional television, books, or journals to communicate their message, while there were 21 FP global thinkers who were recognized for using Facebook, YouTube, Twitter, and blogging to spread their message. (Of course, I recognize that many of these public intellectuals use a variety of media to communicate their message; these categories are based on Foreign Policy’s description of their influence).

Here are the two lists:

It’s widely recognized that our discussions as international lawyers extend beyond the specific subject matter of international law, at least as traditionally defined. (When I introduce the students in Georgia’s international law colloquium to the types of scholarship they’ll encounter, I describe international law as just one of four or five different subjects international lawyers write about.) And there have been any number of attempts over the years to reframe the legal phenomena we talk about. Nonetheless, reading the past couple of symposia on this blog, I’ve been struck by the continued need to break free of the international law paradigm and develop a more pluralistic understanding of regulation across borders.

There are a number of different ways we might want to expand our traditional understanding of international law. One might be to have a more plural conceptions of sources, recognizing that sources beyond treaty, custom, and general principles, seems to play some role, as for example, I suggested here and here regarding an international common law, and as Dan Bodansky has suggested regarding general discursive principles. Alternatively, one might suggest, as I do here, that we increasingly have regime specific “international laws” with different conceptions of law, lawmakers, sources, and legitimacy.

A third possibility would be that we need to think in terms of plural conceptions of law or plural legal systems. This is the suggestion raised in a couple of the symposium discussions. Ming-Sung Kuo, in “Taming Governance with Legality? Critical Reflections upon Global Administrative Law as Small-c Global Constitutionalism,” raises the question whether Global Administrative Law (GAL) represents the global constitutionalization of public law governance. But where are the “public law” norms in question coming from? Given the disparate nature of the regimes in question, it is hard to imagine that the source is international law. Similar hints of a different concept of law outside of traditional international law emerge from the joint EJILTalk!-ASIL discussion of Marko Milanovic’s book. Vaughan Lowe, in his comments over at EJILTalk!, referenced an article by Lea Brilmayer, in which she argued that human rights treaties are not the state-to-state contracts, but instead state pledges to follow certain accepted norms. The point of Brilmayer’s piece is that many human rights agreements are tough to square with an international law paradigm in which states bargain for reciprocal benefit that they then enforce against one another.

Given challenges such as these, do we need to rethink international law’s monopoly on global regulation? A common reaction to these phenomena has been to shoehorn them into the prevailing international law paradigm, either by trying to draw some chain between these rules and state consent or by expanding international law doctrine to incorporate different actors and processes. Brilmayer, for example, seems to frame her pledges as merely a different form of international law. But another way to think about these pledges is as a different system of law entirely, one that runs not between states, but between states (or other public authorities) and the individuals they govern. Rather than a form of international law, many human rights rules may instead form part of a proposed global public or constitutional law – rules asserted, codified, and eventually invoked by individuals against states authority. (This is not meant to suggest that such law is authoritative or legitimate – a separate question – but merely to suggest that this is the form of the rules being invoked.) Some GAL rules may fit into such a global public law system as well.

(Recognizing that there are multiple legal systems in play is complicated by the fact that rules from different systems may be used to reinforce one another. Human rights are often found in treaties. This might suggest to some that human rights are a form of state-to-state international law. A better description though might be that human rights are mostly a form of global public law that are incorporated into international law agreements in an effort give them force in international law as well, adding state responsibility to the enforcement mix. In this sense, human rights treaties would be analogous to domestic law statutes that incorporate treaties, grafting rules from one legal system into another in an effort to exploit additional enforcement possibilities.)

Viewing global regulation as plural legal space, in which multiple legal systems interact, would actually hearken back to earlier conceptions of international law that identified multiple ultimate rule sources. Taking Vattel as an example (only because his work is well-known to many readers of this blog), we would find in his conceptualization rules emerging directly from natural law operating primarily on the conscience of rulers (the necessary law of nations), interstate rules derived from right reason and supported by natural law (the voluntary law of nations), and conventional or customary rules derived solely from states-to-state agreement, explicit or implicit. (Other scholars would have different, but equally diverse lists.) But even these rules were not alone. They were joined in the transnational regulatory space by privately created Lex Mercatoria and canon law.

In a similar, but updated, vein, we might try to identify different legal systems among today’s cross-boundary regulation. Along with international law (law between states), we might identify a type of global public law (law invoked by people against official authority), as well as a modernized form of jus gentium – standards that aren’t so much imposed as proposed, best practices around which many states and actors converge. There may be other forms as well.

And recognizing that international law may be just one type of cross-border or supra-national regulation might clarify a range of questions. The puzzle of why states would bargain with each other for human rights treaties or enforce their rules recedes into the background. Questions about the relative authority and effectiveness of such agreements can instead focus on the individuals who promote, draft, and seek to apply them. (At least some) soft law standards need no longer be seen as deficient international law. Instead that might be seen as part of a new jus gentium in which convergence rather than compliance is the goal. Most of all, it takes the wobbly doctrinal lid off of long bubbling questions about how these rules should interface. How global public law and international law, with their divergent sources of authority and differing values, should relate to one another would now take central stage.

This will be my last guest post for now. Thank you again to the entire Opinio Juris team for allowing me to share their space for a bit. And I look forward to seeing or meeting many of you in person whether at the JILSA conference at the University of Georgia or the ASIL Annual Meeting in DC.

Reading Dan Bodansky’s accounts of the difficulties inherent in reaching a new climate agreement, I’m reminded of a terrific new paper forthcoming in Penn Law Review, “Codifying Custom,” by my colleague, Tim Meyer.  Tim demonstrates that the types of power plays that make negotiation of new rules so difficult are equally present in attempts to “codify” existing rules.  The codification of custom in treaties is generally seen as a positive development in international law, giving the existing rules additional certainty, clarity, and legitimacy.  What Tim shows is that, in fact, codification can often be an effort by powerful states (in this case, ones who can control the treaty-making process) to capture rules for their own benefit.  Here’s the abstract:

Codifying decentralized forms of law, such as the common law and customary law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules, and therefore to justify and explain codification. The codification literature, however, overlooks codification’s distributive consequences. In so doing, the literature misses the primary motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how codification affects the general welfare.

This Article fills this gap in the literature by examining three rationales for why states codify customary international law: 1) a desire to clarify the substantive content of customary law in order to promote cooperation (the Clarification Thesis); 2) a desire to enhance compliance through mechanisms such as monitoring, enforcement, and dispute-resolution provisions (the Compliance Thesis); and 3) a desire to define the content of customary rules for a state’s individual benefit (the Capture Thesis). While codification’s proponents conceive the enterprise in terms of the Clarification and Compliance Theses, I argue that states more frequently use codification to capture customary international legal rules to benefit themselves at the expense of the general welfare. As states with divergent views on how to interpret a customary rule pursue conflicting codification efforts, they entrench schisms in the law along regional or ideological lines, thereby delegitimizing customary rules and increasing fragmentation. Thus, far from being an unqualified boon to benevolent legal ordering, codification can replicate, magnify, or alter power dynamics present in forming bare customary law. Indeed, the fragmentation of customary law that can result from codification actually prevents a unified understanding of customary law from emerging — the exact opposite of codification’s ostensible purpose. This Article uses the Capture Thesis to explain important developments in customary international law, including the outlawing of the slave trade in the nineteenth century, the rise of bilateral investment treaties, and the inability to reach agreement on a multilateral investment treaty.

The paper is a great example of what can be accomplished when a deep understanding of traditional international law and legal methods is combined with methods from international relations and economics.  I recommend it highly!