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

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.

But the key to distinguishing Professor Cheng’s policy-oriented analysis from pure positivism is that the commitment to following law should be understood (in his view) as contingent on policy analysis, rather than the other way around.  While legal rules cannot be simply rejected, there is no obligation to blindly follow prescriptions that will be ineffective or morally harmful.  Policy-oriented jurisprudence will account for power relationships, self interest of great powers, and other factors in a pragmatic accommodation.

At the same time, policy-oriented jurisprudence has little tolerance for strict realists (personified here by Professors Jack Goldsmith and Eric Posner) who reject any moral basis for following international law.  Reducing international law to rational self-interest ignores the thin but significant moral value in preserving world order and minimum levels of human dignity.

In other words, Professor Cheng’s theory suggests that international law is moral, and therefore decisionmakers have a thin moral obligation to use legalist methods to follow international law almost all of the time.  But the moral obligation to follow law is hardly absolute, and depends on a complex policy analysis of particular situations and problems.  If I can try a short bloggish description:

We should follow formal, positive international law most of time, except when we shouldn’t.  In those cases, we should find a way to do the right thing without undermining the overall international legal system, which has an inherent moral value in maintaining minimum world order.

If this account of Professor Cheng’s policy-oriented theory is accurate, then one might think he is simply updating the New Haven School for the 21^st Century.  But this (far from small) accomplishment is only one part of his book. What makes WILW so unusual is that it attempts to apply its framework to an astonishingly wide and diverse set of factual and legal circumstances.  Organized by “decisionmakers”, Professor Cheng examines ICJ decisions on the use of force and on consular relations, arbitral decisions on investment protection, regulators’ response to the global financial crisis, legal advisers in developing rules for prisoner interrogation, and government officials in deciding whether to unleash a broad military attack.

Not only is this a breathtakingly wide range of subjects, but Professor Cheng does not shy away from tackling the hardest and most controversial ones.  Let me focus here briefly on his account of what is unquestionably the hardest and most difficult case for his analytical framework: the so-called “torture” memos and waterboarding of detainees in the U.S. war on terrorism.  Professor Cheng is to be saluted for facing the hardest cases, and taking a stand (or more accurately, making his theory take a stand).

In Chapter 7, Professor Cheng analyzes the performance of the much-maligned Bush Administration Justice Department (and other departmental legal advisors) in advising on the law governing detainee treatment and interrogation.  He starts with the easy case, Abu Ghraib, and concludes that there was nothing in the policy oriented approach that required departing from normal legal analysis in that case.  Abu Ghraib was illegal, and it was treated as illegal at the time when it was discovered.

The harder case, of course, is the waterboarding of detainees during interrogation.  Here, Professor Cheng shows admirable evenhandedness.  He rejects the absolutist moral approach espoused by scholars such as Jeremy Waldron. He carefully examines the law of torture as it applies to waterboarding, and the facts about the particular type of waterboarding, as well as the special contingent circumstances that led to the frantic search for intelligence from detainees.

According to Professor Cheng, the legal memos authorizing waterboarding were still overbroad and wrongful.  But he does not go so far as to argue that all waterboarding is always illegal at all times.  Carefully monitored waterboarding, following the techniques used for training of U.S. soldiers, and subject to aggressive third-party monitoring, could indeed be justified in contingent circumstances.  Waterboarding that was videotaped, and specifically authorized under the oversight of monitors, could be justified if the emergency was significant enough.

I am hardly doing full justice to Professor Cheng’s discussion here, which is sure to draw its share of criticism.  I should hasten to add that he does not mean to suggest that he endorses the Bush administration interrogation policies. His larger point is that the result (if not all of the legal reasoning) could have been reached under his theoretical framework.

But this brings me to the more foundational criticism of his theoretical policy-oriented approach.  In Professor Cheng’s view, the case of harsh interrogation of detainees who may (or actually did) have information about future attacks is a hard case requiring all the tools of a policy-oriented jurisprudence (morality, effectiveness, interests….) In the end, he comes out with a very nuanced conclusion.

But one test of a theoretical framework is how predictive it might be in a particular situation.  Here, Professor Cheng admits that individuals applying his framework could very likely reach different conclusions. The value of his approach, then, is in forcing legal decisionmakers to justify their legal arguments in policy and morality, and perhaps to consider such factors in their analysis.   It does not purport to predict, or even direct, decisionmakers to reach a particular legal conclusion.

How would, then, the relevant decisionmakers in the Bush Adminstration have benefited had they used Professor Cheng’s approach? Would it have bolstered their own policies, or would it have bolstered the international legal system as a whole.  Given the sharp political and moral differences revealed in the interrogation policy battle, I am dubious that any difference would have been made.  I wonder if Professor Cheng agrees that I am right, and if so, whether that matters?