On behalf of all of us at Opinio Juris I would like to thank  Mary Ellen O’Connell having joined us this week in our second Oxford University Press/ Opinio Juris book symposium for a discussion of  her new book, The Power and Purpose of International Law. 

We would also like to thank Beth Simmons for joining us as a guest commentor.

Thanks also to everyone who posted comments and contributed to the dialogue.  We’ll post the details of our next book discussion soon.

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…

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…

The Power and Purpose of International Law stands in what we might call “the prophetic tradition of international law.”  It has a long pedigree; nearly all of the theorists of international law praised in Mary Ellen’s book are not just moral idealists about international law - Grotius or Henkin or even (in that peculiarly dialectical way, as Mary Ellen very ably explains) a presumptive legal positivist like Kelsen - they are all evangelizers and prophets.  They, like Mary Ellen, do not just invoke a transcendental premise as a philosophical device, but offer an immanent critique of a fallen and sinful world of lawless sovereign states gradually coming into a state of lawfulness under a natural moral order.  They do battle with a long list of skeptics, realists, cynics, doubters, that includes everyone from Hobbes to Machiavelli to Carl Schmitt and, as it turns out, Jack Goldsmith and Eric Posner.  

I am not a realist, and I must therefore confess to a deep concern that The Power and Purpose of International Law so thoroughly incorporates natural law into the prophetic tradition that it leaves no daylight between them - and, so far as I can tell, no room remaining within natural law, for someone like me …  For someone like me, a natural law idealist in some suitably loose form, this evangelizing zeal has no attraction whatsoever, and even less so the book’s manichaeism, the division of the world into good guys of international law and bad guys.  Natural law is not the exactly the same thing as prophetic immanent critique; it is possible to hold a far more pluralistic - I am tempted to say ‘polytheistic’ - view of it than The Power and Purpose of International Law seems willing to permit.  More than once it seemed to me that the title of this erudite and scholarly, yet deeply impassioned, important book might well have been, ‘The Monotheism of International Law’.  

For out of Zion shall go forth the law, and the word of the Lord from Jerusalem.

Within the context of our roles as part of a research group at Princeton’s Center for Theological Inquiry, Mary Ellen and I have had many wonderful conversations about natural law as a source for international law. My sense is we both share the view that natural law could be such a source, and we have discussed various instances in which that might occur. Let me briefly summarize the three most obvious possibilities.

First, natural law might be relevant to identify and define jus cogens norms. Second, natural law might be relevant to identify and define crimes that justify national court assertion of universal jurisdiction. Third, natural law might be relevant to bolster arguments for the establishment of positive international law….

Despite the title of his post, I do not read Chris Borgen as a natural law skeptic! He accepts the existence of norms and principles that must be explained by theories other than positivism. He is just skeptical about the standard approach to explaining the source of natural law, namely, the use of the concept of the common good.

I am concerned about that approach, too, and for some of the same reasons as Chris. Like him, I, too, see the New Haven School taking a common good approach that has been formulated through the observations of a handful of scholars. We should not dismiss the importance of concepts such as human dignity to inspire us to press for better international law, but such scholarship cannot be the source of universal principles.

The other classical explanation of the source of natural law is to draw on the evidence offered by the positive law. My contribution to the use of this source is to look to the development of legal process theory in this country—first by Hart and Sacks of Harvard, then Koh of Yale—as to who should be drawing the conclusions from examining the evidence. Legal process teaches it should be the authorized decision-makers—authorized under the positive law—through reasoned decision-making. This is not, of course, a perfect approach. . . .

At risk of distracting us too soon from the merits vel non of natural law, I wanted to take up another piece of Mary Ellen’s account – namely, her fairly positive outlook on the prospects of domestic court enforcement of international law.

Despite the subject matter’s placement in the very last chapter of the book, Mary Ellen I think rightly notes: “National courts are, in many respects, the most important institutions for enforcement of international law.” They are, she posits, the “most commonly used method of international law enforcement and in many respects the most attractive.” While national courts have imposed various discretionary or prudential obstacles to the successful enforcement of international law, Mary Ellen says, “these self-imposed limits have been diminishing in recent decades.”

I admit to stumbling a bit over the empirical claim…

In working through an explanation for the source of international law’s authority in the international community, Mary Ellen O’Connell describes the important role of positive law but also shows its limits. For example, it is very hard to imagine a serious contention that it is somehow possible to legalize genocide or slavery through the mere fact of enacting positive law. As Mary Ellen explains, there would be a general agreement that such laws—in whatever country they existed—would be invalid. In effect, they would be trumped by something prior to positive law. This is the realm of natural law or, to use a relatively recent synonym, jus cogens.

But, as Mary Ellen rightly notes in The Power and the Purpose,

The classic problem associated with natural law is, Who decides? How do we avoid the natural law answer being the subjective opinion of any one person—scholar, judge, world leader? Contemporary natural law theorists have responded to this problem, especially through the concept of the common good as an objective answer for natural law principles.

Mary Ellen, however, offers an additional explanation based on legal process theory.

I agree that a workable concept of natural law could bolster international law by defining a set of rules that were above and beyond the power of states. However, I am skeptical that such an enterprise is politically feasible beyond a very narrow set of rules (such as those mentioned in the first paragraph). In short, I am a natural law skeptic in all but a very few instances. Here are my reactions to Mary Ellen’s argument…

In response to Will Fettes’s thoughtful post: The problem is not with positivism per se but positivism alone. By the 1960s, certainly in the United States there was a view that only positive law theory explained law and positive theory relied on the existence of the usual legal institutions—with their absence on the international plane, positivists could not understand how international law could have authority, be created, etc. International law hardly seemed to be real law. Its existence might extend as far as the president’s consent but not beyond and that consent could be withdrawn. American legal theorists could hardly conceive of (and the torture memos do not mention) jus cogens or peremptory norms. . . .

President-elect Obama’s campaign for the presidency was all about change—change we can believe in. No doubt the readers of Opinio Juris have a long list of topics on which they wish to see change: Guantanamo Bay, CIA interrogation, Iraq, Afghanistan, the Middle East, Congo, Darfur, weapons proliferation, the global environment, the global economy, etc. But even if the new President manages positive change in these areas, to avoid the same type of mistakes that plunged the current Administration and the nation into so much trouble, we will need a more basic change: change back to our traditional deep knowledge of and deep respect for international law.

It seems many in our foreign policy elite—Democrats and Republicans alike—would not be able to explain why international law is binding law. They might be able to talk about consent to treaties, but not why consent binds or why customary international law binds, or even describe the general principles of international law. The current state of knowledge about international law contrasts with the decades before the 1960s when our Secretaries of State and their legal advisers, our judges, our law schools, even much of our public, had deep expertise and commitment to international law.

Many of our top legal and policy minds don’t even make the distinction between international law (law at the inter-state level) and foreign law (law of another country). Indeed, foreign law is not binding on the United States. However, international law is binding on the US, be it a treaty to which we are a signatory, a decision of a tribunal or court before which we have appeared, or those basic rules of customary international law and general principles to which all nations are held.

The Power and Purpose of International Law offers an explanation of how we lost that knowledge and commitment in the hope of showing the way back…

On Monday through Wednesday next week, Mary Ellen O’Connell, the Robert and Marion Short Professor of Law at the University of Notre Dame Law School, will join us to discuss her new book, The Power and Purpose of International Law.  We are also very pleased that Beth Simmons, the Director of the Weatherhead Center for International Affairs and the Clarence Dillon Professor of International Affairs in the Department of Government at Harvard University, will also join us for the conversation.

This book discussion will give us the opportunity to dig into issues of the enforcement of, and compliance to, international law, bringing together a consideration of some of the classic theorists as well as more contemporary debates. Here is a description of The Power and the Purpose from the OUP website:

The world is going through another important transition. International institutions have unquestionably been weakened as the United States works to sort through complicated issues such as the Afghan and Iraq wars, the use of torture and secret detention, Guantanamo, climate change, and nuclear proliferation. In recent memory, top Bush Administration advisers have spoken and written about the powerlessness of international law and its irrelevance-or worse-for the United States. The worldwide public needs and deserves a more accurate account. In The Power and Purpose of International Law , Mary Ellen O’Connor provides such an account by explaining the purpose of international law and the powers of enforcement it has available to achieve its mission…