I thought the FT leader on the Goldstone report got it about right. The report on Israel’s assault on Gaza is a serious bit of work and it’s fairly desperate to try to discredit it by calling its author a “self-hating Jew”. The bigger problem lies with the UN Human Rights Council … And lying behind that, is a still bigger problem with the very idea of impartial international law. … I asked whether international law really deserved the same status as domestic law? After all, the very basis of justice in a nation-state is equality before the law – anybody who commits a murder should be arrested and prosecuted, no matter how powerful they are. But this basic principle does not apply in the international arena. Almost all the people hauled before the ICC have been African leaders; and the UN special tribunal on the former Yugoslavia (where Goldstone was chief prosecutor) only got to prosecute the likes of Milosevic because Serbia was defeated in a war. … The trouble is that … the system of international law that we currently have is as much about power in the international system, as about human rights or the law.
I just did a bloggingheads with Eric Posner which was all about this topic (the nature of international law, not the Goldstone report) – Eric has a new book which, it would be fair to say, is not particularly favorable towards international law. Me, I find the debates among legal academics about international law weird and confusing (perhaps because I am a political scientist, who thinks in very different terms). It seems to me that the concept of international law bundles several, quite incongruous things together, which have very different sources and degrees of legitimacy.
First are things like UN Security Council approval for the use of force. This is international law – but I don’t think that one can plausibly argue that it has much inherent legitimacy (see Erik Voeten on this). The justifications for respecting this kind of law are pragmatic. First, UN Security Council approval raises the bar for the use of force significantly, making it somewhat less likely that force will be employed (while states sometimes ignore this requirement, it does cost them). If you think (as I do) that force really should be a last resort, then this is probably a good thing. Second, uses of force that are unlikely to get UN Security Council approval are more likely to fail than uses of force that do, precisely because the latter have the backing or tacit assent of several of the great powers, while the former do not. Thus, there is some real pragmatic justification for abiding by the Security Council most of the time, but I don’t see much of a case that, say, getting the approval of China is likely to be a source of deep normative legitimacy.
Second, is international law regarding, for example, the conduct of wars. This, it seems to me, has considerably stronger normative justification. It stems less from pure power politics than from a shared set of concerns that states have in e.g. minimizing the role of civilian casualties. There is likely a very plausible case to be made that these norms ought to be much tougher and more restrictive than they are – even if they are not a product of power politics they are limited by these politics. Nonetheless, even if they are weaker than they should be, they are still a lot better than nothing. And here, the Goldstone report was exactly right – the ‘but he did it first’ excuse is not, and cannot be a justification for committing war crimes. Nor does the ‘self-hating Jew’ claim, or other ways of attacking the messenger (for a broad sampling of such attacks on various parties, see our indefatigable friend David Bernstein at the Volokh Conspiracy) really stick – if you are unnecessarily killing or seriously injuring hundreds or thousands of civilians, you are unnecessarily killing or seriously injuring hundreds or thousands of civilians, and there is no very good way of getting around this awkward fact. Both Gideon and Eric would point to the undoubted fact that the leading politicians of great powers (or their important clients) are highly unlikely to find themselves in the dock for war crimes. But direct punitive sanctioning is not the only effect of law. It can influence the perceived legitimacy of a particular state, its actions and its leadership. It is quite clear that Israel has taken a substantial reputational hit from the Goldstone report, even if it will never be condemned by the UN Security Council, and that Israel’s leaders are worried and upset about this.
Third are efforts being pushed e.g. by the European Court of Justice to make international law less focused on raw power politics and more on accountability. Here, I think that Eric’s book is wrong. He interprets the European Court of Justice’s holding that “the human rights commitments of European countries take precedence over Security Council resolutions” as evidence that “as Europe becomes a powerful nation, its commitment to international law will weaken.” (p.116). The suggestion here is that Europe is becoming more like the US as it is becoming more integrated and powerful. But this interpretation isn’t really born out by the case that Eric refers to, in which the ECJ held that UN terrorist watchlists were illegal under European law because they had no provisions for effective review. In the words of the ECJ’s advocate-general (whose findings were upheld by the ECJ itself):
had there been a genuine and effective mechanism of judicial control by an independent tribunal at the level of the United Nations, then this might have released the Community from the obligation to provide for judicial control of implementing measures that apply within the Community legal order. However, no such mechanism currently exists.
Why this is significant is that it is an argument (with some teeth – because the ECJ’s decisions are binding on EU member states) that international law should be subject at least to minimal standards of accountability. This is obviously inconvenient for the permanent members of the UN Security Council. But it is about as far from the US position to which Eric equates it (that powerful states have no need to comply with international law) as it could possibly be. Instead, it is a specific claim that powerful states should not be allowed to ignore basic principles of equity in the instruments that they craft.
Fourth are various forms of law (customary international law, conventions on diplomatic representation etc) which aim to minimize friction in relations between states and are not especially germane to any of these broader arguments.
There may also be other forms of international law that I am leaving out; if so, I suspect that strengthens my claim that international law bundles together a bunch of institutions of very different kinds that ought to be analyzed separately, rather than weakening it. Anyway, my position, right or wrong, implies two conclusions. First, that normative arguments for – or against – international law tout court are at best going to be weak, and at worst completely incoherent. The concept of international law is too all-encompassing to be a useful category of analysis. And the arguments being conducted among legal academics seem to me to be less about whether or not international law should count than about which kinds of international law should count. If they were more explicit in discussing the differences between different forms of international law than they are (in my limited reading of the literature), their points of agreement and disagreement would be much clearer. For example, the ECJ ruling discussed above is much better understood as a claim that international law needs to adhere to minimal standards of accountability if it is to be binding than (as Eric interprets it) as an attack on international law as such. A better vocabulary would make that plain.
Second, and more concretely, international law does not have to be an expression of, or fundamentally subordinated to great power politics (a position that Posner shares, as he notes, with lefty radicals like Koskeniemmi, and indeed China Mieville). Partly this is because its effects don’t only run through direct sanctioning, but through other indirect channels such as reputation. Partly also, it is because international law plausibly not only reflects states’ interests but helps shape them too. There is some very interesting political science literature beginning to percolate through about the consequences of international law, international organizations etc for state behaviour and self-conception – without going into too much detail, it is apparent that these rules can and do shape states’ conception of their interests in some very important ways. And if international law can reshape states’ interests (at least to some degree, some of the time) without the direct threat of sanction, then it can be causally important in ways that aren’t really captured by Eric’s or Gideon’s arguments. NB however, that this not constitute a general claim that international law is good and that we should have more of it; instead it is a simple observation that international law works (for good or ill) through more and different means than we usually acknowledge. More on this at some undefined point in the future, I hope …