Cheng Book Roundtable: Power in International Law (A Response to Professor Osofsky)

With characteristic perspicuity, Professor Osofsky has offered a magnificent synthesis of my book and this week’s roundtable, all informed by her perspective about international law. I thank her for her remarks.

Professor Osofsky raises a question of how my theory would help less powerful decisionmakers in the international legal system. Let it not be mistaken, and Profssor Osofsky does not suggest, that my theory seeks unquestioningly to entrench or apologize for powerful decisionmakers.

Power can be used to good or bad ends. I would thus caution against knee jerk reactions against power disparities. Equal power in the hands of irresponsible or naïve decisionmakers can be just as dangerous as power concentrated in self-interested decisionmakers. In every international problem, a relevant question is whether the distribution of power promotes the relevant policy goals.

In order to identify and rectify inappropriate inequalities, a theory of law needs to recognize the role of power in international legal problems. Only then power can be managed and directed to good ends. That is one reason why my theory explicitly requires decisionmakers to think about effectiveness, among other considerations. Accounting for effectiveness does not mean jettisoning ideals. But it does require us to temper our ideals with a realistic sense of what is achievable.

Consider the challenges of self-determination, which I addressed most recently in a law review article, Why New States Accept Old Obligations, 2011 U. Ill. L. Rev. 1. A territorial community may have a legitimate normative claim to self-determination. But the territory may also be too small or too resource poor to ever become an economically sustainable state that is safe from foreign attacks.

In such situations, the best option within the realm of the possible might be an alternative configuration of independence that approximates, rather than literally achieves, the ideal of statehood. Puerto Rico, Andora, and small states that give up some autonomy to become part of the European Union, provide models. From one perspective, this proposal perpetuates current global power configurations. It may be wrongly criticized as post-colonial imperialism. From another perspective, this proposal may be the best hope for small territorial communities seeking independence from oppressive regimes.

Professor Osofsky also makes a useful suggestion that the implications of my theory on relatively weaker participants deserves further study. A fellow of the Institute for Global Law, Justice, and Policy, and I are currently researching what the Occupy Wall Street movement tells us about decentralized systems of law in general and international law specifically. There is much more work to do to test my theory against corporations, NGOs and other actors.

Professor Osofsky’s important research into the potential influence of city governments on global environmental issues also underscores how we must not neglect study of sub-state actors. If all politics is local, then so too is law – including international law – that is entwined with it.

In this final post from me in this Roundtable, please permit me to renew my thanks to Opinio Juris, Julian Ku, Ralph Wilde, Rob Howse, Chester Brown and Hari Osofsky for the invigorating conversations this past week. I have learned from their insights.

I would like to sign off with the same words that conclude my book:

The justification for international law does not depend on whether it is law. It depends on whether the international legal system is effective and good. . . . On final analysis, international law is what we make of it, for it is nothing more or less than the sum of our decisions.

If my book provides a framework to clarify our disagreements and find solutions, as we have begun to do in this Roundtable, then I have achieved what I set out to do.