In association with the International Commission of Jurists

Author: Eric Posner

25 Jun

[Eric Posner is Kirkland & Ellis Professor of Law and Aaron Director Research Scholar at the University of Chicago] I’m going to focus on a narrow issue, one that Katerina takes up in the last chapter of her impressive book, and that is the relationship between policy diffusion (the topic of her book) and international law (which is something of an afterthought), and specifically the debate as to why states comply with international law. I can see a few possibilities. First, there is no relationship between the argument in her book and international law. Katerina argues that state X may adopt the policies of state Y because voters in X perceive the success of the policy in Y as evidence of its value, but this process of diffusion says nothing about why state X may comply with an agreement with state Y. Suppose, for example, that state X and state Y enter into a mutual defense pact. The fact that X may imitate Y’s domestic policies, or even foreign policies, does not mean that X will comply with the pact. Second, the book suggests that international law is weaker than generally recognized. Maybe what appears to be compliance with international law because it is law is actually the diffusion of policies. X and Y agree to reduce tariff barriers but X lowers its barriers not because of its treaty but because Y, for independent domestic reasons, lowers its barriers, and X mimics Y. Policy diffusion, not international law, is the causal factor. Thus, if numerous other states raise their trade barriers, we would expect X or Y to raise their trade barriers as well, in violation of the agreement. Third, states comply with treaties because the treaties themselves become a vehicle for the diffusion of policy. States X and Y enter the WTO and comply with its rulings in order to obtain gains from trade. State Z can more easily imitate X and Y’s policies by observing the WTO’s rulings than by surveying numerous states. If Z is itself a member of the WTO, then policy diffusion here may in some sense cause Z to comply with the WTO, or at least act consistently with it. Note, however, that according to Katerina’s argument, Z would comply with the WTO rulings even if Z were not a WTO member and thus had no legal obligation to do so. Katerina endorses the third hypothesis, but her evidence does not distinguish it from the other two. This matters when we consider her claim that her thesis and evidence should quiet those who criticize international law because it interferes with democracy by constraining domestic politics. Katerina’s argument that international law generates information that voters can use to discipline their political agents depends on an implicit assumption, never defended, that policy differences across states are mainly due to asymmetric information, and not heterogeneous values and preferences. There are three problems with this assumption.
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05 Jul

[Eric Posner is Kirkland & Ellis Professor of Law and Aaron Director Research Scholar at the University of Chicago] This post is part of the Leiden Journal of International Law Vol 25-2 symposium. Other posts in this series can be found in the related posts below. Mario Prost and Alejandra Torres Camprubi’s article begins promisingly, with its criticism of IEL scholars’ “tacit disciplinary mindsets” which see international environmental law against all evidence as a “heroic and transformative project.”  But while one would have expected the authors then to launch a broadside against the idealistic tendencies in the IEL literature that have rendered most of it irrelevant to real-world policymaking, they pivot and criticize the literature for ignoring “fairness”—which is news to me.  The oddness of this approach is epitomized by their choice of target: my book (with David Weisbach), Climate Change Justice.  They are right to argue that we discount fairness in our book, but I do not think anyone would regard our book as representative of conventional IEL scholarship.  If that is their view, it is far more wounding than any of their substantive criticisms. In any event, let me address these criticisms.  Prost and Camprubi argue first that we present the South “as an opportunistic negotiator” rather than as a “bona fide partner.”  I fear that we might get lost in semantics here, or the clubby rhetoric of diplomacy, but I regard all countries as “opportunistic negotiators,” out to seize the main chance, and willing to use whatever means available.  So if I say or imply that the South is “opportunistic,” I am treating southern countries as equals of the North, and resist the clichés so common among scholars, who take the rhetoric of (often authoritarian) countries at face value, and see developing countries as hapless victims or righteous spokesmen for justice.
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23 Aug

The State Secrets Privilege. I know little about this doctrine and defer to Bobby’s superior expertise. I will just make a simple point that will by now be familiar. The state secrets privilege, like the other rules we have discussed, reflects a tradeoff between liberty (or some other value at stake in a particular case) and security....

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21 Aug

I agree that the concerns that Bobby Chesney identifies are real and important. There are no answers at the level of theory; the scope and level of deference must be worked out at the level of practical politics. In practice, as we have seen, the president (and presidents generally) press for maximal powers where they think they need...

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21 Aug

The post 9/11 debate on presidential power has, inevitably, been overshadowed by the actual performance of the current president. I say “inevitably” but the confusion between the president and the presidency has greatly limited the value of the academic discussion, which has been unfortunate. Consider, as an abstract proposition, the claim, which could be made at any time in American...

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21 Aug

Let me say a few general words about one of Lou’s points, as endorsed and restated by Marty in his comment: “First, the Framers had seen up close what can happen when too much "emergency" power is concentrated in the executive (short answer: it wasn't pretty), and therefore established substantial checks (mostly structural, but, esp. in the Bill of Rights...

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18 Jan

John Bellinger’s latest post raises two interesting questions, the first about the function of immunities and the other about the role of the executive branch (specifically, the State Department) in litigation against foreign interests. The immunities rules straightforwardly recognize that what we traditionally regard as core features of judicial competence do not extend, at least not fully, to foreigners. We...

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17 Jan

John’s most recent post raises the question of the nature of the “bargain” theory, as he puts it, of the Geneva Conventions: In separating lawful and unlawful combatants, the Third Convention creates a basic bargain for those engaged in an international armed conflict. Engage lawfully in combat and, if captured, you will receive the comprehensive treatment protections of the Convention. Ignore...

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16 Jan

Some of the commenters have been trying to prod John Bellinger to discuss the administration’s internal arguments about the legal approach to the war on terror. Of course, he cannot comment on these matters, but we should not let that stop us from discussing them. Media reports about the debates about international law within the administration appear to reveal three...

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15 Jan

[Opinio Juris welcomes Professor Eric Posner as a guest respondent. Professor Posner is Kirkland and Ellis Professor of Law at the University of Chicago.] Thanks to Roger for asking me to write a reply to John Bellinger’s post. I’m going to ask—even though I suspect that John will decline to answer—what is at stake in this argument. The...

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