Cheng Book Roundtable: When Should International Law Do More than Work?

by Julian Ku

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.

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.

Book Roundtable on Professor Tai-Heng Cheng’s “When International Law Works”

by Julian Ku

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.