What Exactly Does International Law Mean?

by Henry on October 22, 2009

Gideon Rachman

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 …

{ 36 comments }

1

Matt 10.22.09 at 4:33 pm

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.

I think this is exactly right, and that it’s essential to keep in mind in these discussions if one wants to do more than rhetorical point-scoring. I’d more or less agree with what you say though I’d add that international economic law, both in private law and public law forms, is important, pretty large, and largely followed (some aspects of it have as good or better compliance rates as do large parts of domestic law.) You can’t really make the case that international law “isn’t law” or is unenforceable or is just about power unless you ignore this large part of it, but there’s no good reason for doing that.

2

kid bitzer 10.22.09 at 5:07 pm

you cannot both support the legitimacy of domestic law, and also base your critique of international law on disparities in its application. there has never been an actual nation in which domestic law was applied with anything but the grossest disparities.

yes, the heads of african states find themselves before the icc more than the heads of europeans states do. you know what? the poor and powerless in america find themselves in the dock and then in jail more often than the wealthy and well-connected, too.

equality before the law is a norm, in domestic law as in international; a standard seldom attained. note that rachman cannot bring himself to claim that domestic law is error free on this front; he does not write “anybody who commits a murder *is* arrested and prosecuted, no matter how powerful they are,” only that they “should be”. he would have lost all credibility if he had said domestic law actually attains equality before the law; but by conceding that it does not, he loses his own argument.

international law is no different from domestic on this front; equality is the ideal, too often distorted by disparities of power and wealth (and racial background etc.). if you don’t like the inequalities of application, then work to see international justice applied more equitably (e.g., just to take examples at random, applying it to israel as much as to other countries; putting dick cheney in the dock as well as milosevic). trying to make this the basis for an attack on international law is like taking u.s. sentencing disparities as a reason to erase all domestic laws from the books.

3

soru 10.22.09 at 5:21 pm

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.

That looks to me to be a distinction without a difference. Claiming the right to decide such things is claiming the power to decide them. Equivalent explanations could be provided for pretty much any possible decision, so the set of things actually meaningfully determined by international law becomes empty.

4

Chris 10.22.09 at 6:06 pm

I agree with #2 above. Selective enforcement has been observed in many, probably all, systems of laws that have ever existed; it isn’t a good argument against *one* kind of law because it proves too much. (Unless you really are an anarchist at all scales.)

Laws seem to have a precarious position with one foot on either side of Hume’s chasm (and some arguments seem to require them to jump back and forth). A law is a prescriptive command, but when law enforcement agencies exist, there are also empirical consequences that can flow from its violation. But they don’t always; even though most people agree that the laws ought to be enforced equally, they aren’t in practice.

And underlying the whole question of “inherent legitimacy” (an implicit appeal to normative standards that take precedence over the laws, and which the laws should be reshaped to follow) are all the unresolved problems of metaethics and moral epistemology. How can we decide if international law is legitimate when we can’t even agree on what “legitimate” means, whether it means anything at all, or what kind of facts or arguments can be used for or against a claim of legitimacy?

5

David Bernstein 10.22.09 at 8:03 pm

My initial reaction when I saw at Volokh that Eric Posner was debated Henry was “why would Eric debate that obnoxious jerk?” I thought maybe Henry had changed. Judging by his cheap shot in this post, apparently not.

In any event, Henry is apparently alluded to my lengthy series of posts explaining in great deal, with appropriate links, why Human Rights Watch is not an objective source on human rights violations in the Arab-Israeli conflict. You can read the entire series of posts here, http://tinyurl.com/yzmcry7, but the most damning fact, in my opinion, is that the two people who are in charge of HRW’s Middle East division, Sarah Leah Whitson and Joe Stork, had long histories of anti-Israel activism when they were hired by HRW, they have hired additional anti-Israel activists to work for HRW, and no one in HRW’s Middle East division has a similar background of pro-Israel activism. This would not be objectionable if Whitson et al strenuously tired to overcome their biases, but instead they indulge them. I link, for example, to a speech by Whitson on the subject of human rights abuses in the Middle East. She spends many minutes detailing alleged abuses by Israel during “Israel’s wars” with Hamas and Hezbollah, and a whole 12 seconds mumbling something incoherent about the latter two groups, whose very existence (given international conventions on terrorism) in their current form violates international law, and whose overt tactics of targeting civilians is inarguably a violation of international humanitarian law. Henry can call this “shooting the messenger” if he chooses, but perhaps he’d be better off explaining why the substance of my posts is wrong.

6

David Bernstein 10.22.09 at 8:14 pm

Oh, and I suppose for the initiated I should explain why Henry is a jerk. Among other things, he defended co-blogger Davies for falsely claiming that I had gone back and edited posts about Israel and Qana, and added the false claim that I had gone back and deleted a post I had written about a Mr. Bowles from the ACLU. You can read the thread here, http://volokh.com/posts/1200252010.shtml, and (still!) find the post that Henry alleged that I deleted long after the fact here: http://tinyurl.com/yg9ljk2

Needless to say, no retraction from Farrell (or Davies, for that matter), much less an apology, has been forthcoming.

7

Henry 10.22.09 at 8:44 pm

David – since you are making a false accusation here, I feel that I should respond. I read a follow up post to the one you link to, written by you, which was considerably nastier and indeed suggested that the individual in question should be fired. This post disappeared quite soon after it went up, never to be seen again. Your claim that I made “a false claim that [you] had gone back and deleted a post” is demonstrable bullshit. My actual words were

I’ve no idea whether Bernstein himself thought better of it (which happens), or whether one of his fellow bloggers removed it, or whether something else happened entirely – but the suggestion that Bernstein’s posts are left unsullied and complete, no matter what, is in my experience quite incorrect.

Although I have no specific knowledge as to what happened, I frankly don’t understand how your fellow-bloggers (some of whom seem both decent and sane people, although they have political opinions I do not share) resist the temptation to remove your posts on a regular basis. If I were them, I would find your blogging a considerable public embarrassment. Your frequent resort to blocking comments on your posts so as to forestall strong criticism suggests that I am not alone in this opinion.

8

kid bitzer 10.22.09 at 9:22 pm

strange–it’s almost like someone came here just in order to derail the conversation, because they really, really don’t want to talk about international law and the reasons it is binding on all nations, in all circumstances.

why would anyone have such a strong resistance to talking about international law, and the reasons that it is binding on all nations, in all circumstances?

9

LFC 10.22.09 at 9:32 pm

To get back to int’l law: the post makes interesting points and I need to read it more slowly than I just did. A few short comments:
1) This is more contra Posner probably, but the US govt position, at least as officially stated, has never been that it can ignore intl law whenever it wants. Even the Bush admin never went quite that far.
2) The Obama admin, w/ people like Koh and Slaughter in high positions, is going to take (already has taken) a quite different approach to intl law than the Bush admin.
3) Without naming names or pointing fingers, there are some people and organizations who might be characterized as professional cheerleaders for international law (nothing necessarily wrong with that); however, they probably have a practical interest in treating “international law” basically as one thing rather than, as Henry’s post does, several different things. Moreover, there is sometimes an overlap between legal academics and these advocates, and this perhaps accounts for some of the differences in approach between intl lawyers and political scientists, while different disciplinary cultures account for a lot of the rest.

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David Bernstein 10.22.09 at 10:08 pm

I did indeed write not one, but two follow-up posst, both of which, remarkably enough are still there!: http://tinyurl.com/ylz7z3k , and http://tinyurl.com/ykc2rsu

In the latter one, I write that “If the ACLU is going to employ individuals who apologize for/support terrorism to work on 9-11 related issues it will, and it should, lose credibility on those issues,” which I suppose could reasonably construed as suggesting that Bowles should be fired.

Now, if you have the smallest shred of decency, you will act like a man and apologize.

11

David Bernstein 10.22.09 at 10:18 pm

And by the way, for someone who finds me so contemptible, you seem to cite me, reference me, and otherwise think about me a whole hell of a lot (whereas I only pay attention to you when a blogsearch reveals that you have mentioned me). Do I haunt your dreams? Please find another object of your “affection.”

12

Henry 10.22.09 at 10:22 pm

Neither is the post I read. I have quite specific memories of reading the post, wanting to respond to it because it was a nasty and over the top piece even for you, finding it gone and then thinking that perhaps you had had the personal decency to reconsider and to take it down. I apologize unreservedly for having even considered that to be a possibility.

13

Henry 10.22.09 at 10:24 pm

And I apologize even more abjectly for having disrupted the pleasant fantasies of your vanity searches by mentioning you every year or so. Truly unforgivable on my part, I’ll admit, but I hope you can find it in your heart …

14

John Emerson 10.22.09 at 11:03 pm

For centuries we Illuminati have squirmed under the thumb of the Elders of Zion. But now the Jews are divided, and victory is ours! At long last we, and we alone, shall control the world!

15

Moby Hick 10.22.09 at 11:34 pm

The Illuminati is the Minnesota Farmer-Labor party?

16

John Emerson 10.22.09 at 11:38 pm

I’m in trouble now. The cat is out of the bag.

17

Moby Hick 10.22.09 at 11:41 pm

I’m not going to complain. I have a sister in Minnesota, so I should be O.K.

18

Joe S. 10.23.09 at 1:18 am

Back to main thread.
I agree that there are many international laws. One of them is real law: the subject of strong cross-border consensus, and (more-or-less) impartially enforced everywhere. I am thinking of private international law–the choice of law and jurisdiction rules that make arbitration enforceable, ensure that everybody agrees on which body of law is needed to transfer intangibles (trillions of dollars of payments a day), and so forth. Dull stuff–mundane engineering. Which is why it works, at least reasonably well.

19

lemuel pitkin 10.23.09 at 2:46 am

Is there a reason you don’t include arrangements for international trade and capital flows in your typology of international law? On the face of it, seems like the most well-developed area — and the only one that really does bind the strong as well as the weak.

20

John Quiggin 10.23.09 at 2:48 am

A general point about the ‘international realist’ view expressed by Eric Posner is that the implicit picture of states as unitary actors pursuing a well-defined self-interest is exactly opposite to the ‘public choice’ view put forward by, among others, Richard Posner. In this view, state actions are the product of interactions between individually self-interested actors.

Of course, I don’t want to lumber Eric with Richard’s views, but it’s striking to me that a lot of people seem to hold both of these views, and to cap them off with arguments that our supposedly self-chosen actions are actually driven by genes whose metaphorically ‘selfish’ goals will not coincide with our personal wellbeing.

Coming back to the main point, a large part of ‘international’ law consists of resolving, or at least intervening in, conflicts within nations rather than between them.

21

Henry 10.23.09 at 3:51 am

Back to the substance:

Soru, I think it is a real and significant distinction. Here, I should make clear that Eric does not claim that the US has a policy of deliberately disregarding international law – rather that it will interpret such law in ways that suit its interests, seek to move away from tribunals that it finds overly constricting etc, and that no-one has effective power (given collective action problems etc) to make it do anything different. What I think is interestingly and importantly different about the ECJ decision in question is that it is not saying ‘I will adhere to international law as long as its substantive outcomes are in my interest.’ Instead, it is saying ‘I will adhere to international law as long as it adheres to what I consider to be basic minimal standards of legitimacy, even if this means that it may bite me on substantive issues in the future.’ That seems to me to be quite different – and I cannot imagine a US court making a similar determination. Now, there is a quite interesting political story behind this ECJ decision (read the post I link above), so it is not a ‘pure’ expression of legalistic standards by any means. But nonetheless, it has some strong and powerful normative implications. It points away from a concept of international law based on state power and autonomy, and towards a concept in which states themselves are bound by basic standards of accountability.

On private international law – a lot of this is my wife’s bread and butter (she is an international litigator). On trade law, Eric correctly points out that the WTO isn’t as binding as it appears at first sight, and moreover has a punishment regime (based on the right to restrict imports etc) that grossly favors the powerful states over the weak. It is fair to point out though that the ability of states to seek remedy through messing with international IP may even things up a lot if it becomes generalized (or so I understand; I am not by any stretch an expert on international trade).

On the split between domestic libertarianism and global realism – this is indeed an interesting phenomenon characterizing many libertarians. One possible defence might be that while their normative preferences are libertarian at both the domestic and international level, their empirical beliefs are that states are, and continue to be important. I think that is Dan Drezner’s position, more or less.

22

Patrick E. 10.23.09 at 5:58 am

The concept of international law is too all-encompassing to be a useful category of analysis.

Henry, replace “international law” with “political science” or “economics” or “philosophy” and I think see why I think this sentence is almost as wrong-headed as what Bernstein spouts. Your position, that international law bundles together a bunch of institutions, is mistaken because it looks at it from the level of institutions, not from the higher level that you begin to elicit in your last paragraph.

If you think that law is the command of the legislature, compulsory jurisdiction of the judiciary, and the decree of a popularly elected executive, you’ll be depressed about anything concerning international law. But if you understand that law is about regulating behavior, you understand that mandating certain behavior is not the only way to control behavior. Agreements (i.e. treaties) and custom can be as effective in controlling behavior as law handed down from above. And this is not to say that everyone will follow international law, but everyone doesn’t follow domestic law, either, do they? The concept of law is deficient if it does not also hold the concept of lawbreaker as well.

What Exactly Does International Law Mean? It means to make the conduct of other people predictable. The same as domestic law. The means to do so differ, because international law is mainly concerned with states, but the aim is still the same.

23

J. Otto Pohl 10.23.09 at 6:20 am

I think some international human rights laws are quite scholastically useful in categorizing certain practices and types of systems. For instance the 1965 ICERD (International Convention on the Elimination of All Forms of Racial Discrimination) has a better definition of racial discrimination than exists in most academic literature. It is infinitely better than most definitions given in my field, Soviet history, where people like Francine Hirsch and Amir Weiner argue that there were no racist practices by the Soviet government under Stalin.

24

Martin Wisse 10.23.09 at 10:30 am


Coming back to the main point, a large part of ‘international’ law consists of resolving, or at least intervening in, conflicts within nations rather than between them.

Yes, especially in trade and commerce regulation, where international law and agreements can help make an endrun around vested interests nationally, as well as provide governments with cover for unpopular decisions. Succesive neoliberal governments in Europe and America have used the WTO/GATT/GATS structure, as well as the EU as a way to force “liberalisation”and privetisation on their voters, making these adjustments not just unavoidable but unrepealable.

25

Matt 10.23.09 at 11:52 am

On trade law, Eric correctly points out that the WTO isn’t as binding as it appears at first sight, and moreover has a punishment regime (based on the right to restrict imports etc) that grossly favors the powerful states over the weak.

I think this, while not totally wrong, shows a confused approach here, one that’s apiece with some of the general confusion you discuss. This way of thinking about WTO law seems to want to assimilate it to criminal law, but it’s not like that- it’s much more like contract law. The retaliation measures are not best thought of as “punishment” but as self-help measures, like the sort that one can take in contract law if the opposing party doesn’t comply with a judgment- attachment, garnishment, etc. They are not completely comparable, but more similar than criminal punishment. And, compliance with private law decisions in domestic courts is not significantly better than is compliance with WTO dispute body resolutions. Finally, Posner’s way of thinking of the issue here seems to me to over-state the extent that fear of punishment, rather than desire to follow accepted norms, plays in law. So, even in extreme cases like the dispute between the US and Antigua over internet gambling, where Antigua would certainly hurt itself vastly more than it would hurt the US (and might barely hurt the US at all) if it were to actually impose the retalitory tariffs authorized by the appellate body, and so likely won’t impose them, the US is slowly working on coming into compliance (slowly, for sure, but it does seem to be happening.) This seems to be because of a desire to make the system work and not be seen as a bad actor. (Because of internal division this is hard, but is still mostly accepted, I think.) But this is how really large portions of domestic law works, too- if people only obeyed because of fear of punishment we’d have a vastly different and much more unpleasant world.

None of this is to say that international law, in any of its aspects, is just like domestic law. It’s not, and assuming it is is also a big mistake. (Much of international law is parasitic on domestic law, for example, in a way that domestic law isn’t parasitic on something else.) This is also not to say that many international law boosters don’t make strongly over-stated claims, perhaps especially about international “common law.” (Most times I hear someone talking about an “emerging consensus” that grounds some bit of international common law I expect a lot of fluffy thinking to follow.) But it seems to me pretty clear that Posner can only support his stronger claims at all if he basically ignores international economic law, but doing that is to beg the question pretty substantially.

26

Henry 10.23.09 at 2:22 pm

Patrick – it may be (unless I misunderstand you, which is possible) that this is not a disagreement as such; merely a difference in how the term ‘institution’ should be understood. As I understand the term (and use it in my research), it denotes a rule or set of rules that may be enforced either by a formally vested third party (i.e. state apparatus) or by decentralized cooperation, or both. In other words, institutions can be informal as well as formal. So I have no argument at all with the claim that there are other ways of shaping behaviour than formal laws. The one place where I do disagree with you is that I would emphasize that institutions may have many effects beyond controlling behaviour – they can, for example, allow actors to coordinate without necessarily controlling them. But for the full logic of that argument, you would have to fork over the 80 odd dollars that my new book costs (it is a dense-ish argument that would not easily be communicated via blog-comment)

27

Anderson 10.23.09 at 3:16 pm

Henry’s post makes me think of European law in the early Middle Ages, when just plain “law” likewise had several different meanings and sources.

International law, as Gandhi said of Western civilization, is a good idea.

28

Mark 10.24.09 at 4:47 am

Interesting post. I think must take issue with you on one point

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.

While at some level this is correct, I think you need to examine the law of war carefully before you apply it too broadly. There are a number of things that are quite legal under the codified law of war (the “Geneva Conventions”, although in this case that’s shorthand for a larger body of treaties and some conventional practices) that would be war crimes absent the actions of the opposed state. Reprisals come immediately to mind, as does destruction of facilities marked as medical. As a more specific example, perhaps not irrelevant to the campaign under discussion, a combatant sheltering among non-combatants is not only probably committing a war crime himself, but causes it to be legal to cause casualties among those non-combatants (a simplification of the reality — the non-combatants don’t lose all protection — but one that is true in essence, at least as I understand the situation).

Moving from the statement of what the law is to why it’s that way, it may be that things like reprisals are the “enforcement arm” of the law of war. There aren’t many ways to enforce international law in general or the law of war in particular, but recognizing that breaking the law of war will bring harm to you seems an approach to that.

None of the comments above should be taken to say that it’s wise to take such actions, or that I’m expressing an opinion on either the legality or wisdom of either side’s actions in this campaign.

29

Patrick E. 10.24.09 at 9:24 pm

Henry,

Using a term like “institution” is bound to create misunderstandings when discussing international law, because I took it as you referring to those actual established official organizations, like the U.N., the ICJ, etc. And looking at that level, you are bound to see many differences and very little in the way of unifying conception.

However, if we are both looking at it at the higher level of the rules, customs, and traditions governing states, I don’t see why it is so hard to see that the unifying concept there is that these are institutions that cannot be enforced by a third party that is above all others. In a very real way, states only accede to third parties that are above them in some way via consent of the governed, by treaty. And this is a very recent phenomena in international law, less than a century old. Otherwise, every other state is on the same level as every other state, and that introduces different strategies and institutions for making behavior predictable.

As for your disagreement with me, that institutions may have other effects beyond controlling behavior, I would demur merely by saying that the aim of international law is to make the conduct of other people predictable, and controlling behavior is but one way to do that. Coordination is another way, and there are other effects that can contribute to that aim. We do not disagree on this point at all.

30

engels 10.24.09 at 10:30 pm

I’m not sure whether you are claiming that different parts of international law are subject to different normative evaluations (from an independent standpoint) or that the strengths of their claims to be regarded as law varies. The first is a fairly uninformative claim because many people are of the view that many of the domestic laws of their own countries fail to be normatively justified in this sense (ie. they disagree with the decision to enact the law), while acknowledging they are valid laws (because properly enacted, not manifestly unjust, etc) and ought to be obeyed. If the second is what you mean, I don’t think you have explained what it is about the source, or legal process, or other legal matter concerning (eg.) the system of UNSC approval for military action that makes its claim to be regarded as valid international law particularly suspect.

31

engels 10.25.09 at 12:04 pm

Henry, are you saying that the bits of international law you don’t like are bad law or that they aren’t law at all? If it’s the second I don’t think you’ve really given an argument for this, especially as regards to the UNSC. You mention Voeter: if the argument’s in his paper could you say briefly what it is? Otherwise you say —

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

— which seems a bit like me saying ‘I don’t see that getting the approval of Jack Straw is likely to be a source of deep normative legitimacy for anything.’ Well, no, it wouldn’t be, except for the fact that Jack Straw happens to be the Justice Minister. Likewise China has been granted a seat on the Security Council and possesses certain powers in virtue of that role, which ultimately derive from the UN Charter. If you feel this is legally, and not just morally, wrong you would appear to need a legal argument, preferably one that distinguishes this from the parts of international law you approve of, not just a moral claim about the shortcomings of the current Chinese regime.

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engels 10.27.09 at 1:23 pm

Henry, do you mean to claim that the UNSC’s power to authorise military action is normatively illegitimate or only that it is normatively undesirable? The first would have to hold if, as you say, the only reasons for respecting it are pragmatic. But as far as I can tell you have only seriously tried to argue for the second claim.

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Henry 10.29.09 at 7:13 pm

Engels – sorry for lack of reply (busy with other things). I am about to put up a post with more on this. Briefly – my take is that ‘international law’ is a misnomer – it bundles together several fairly incongruous things. Parts of international law which reflect pure power politics – as does the UN Security Council’s approval process – seem to me to have little or no inherent moral legitimacy, although it may usually make pragmatic good sense to obey them. Jack Straw has been elected by the relevant population. China has not. Parts which reflect either (a) widely shared norms, or (b) some minimal degree of accountability seem to me to have a much stronger claim to respect even in circumstances where they are otherwise painful or inconvenient for the relevant parties.

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Henry 10.29.09 at 7:13 pm

And I am about to write another post on the topic, where you can have at me as you like …

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Henry 10.29.09 at 8:21 pm

Or rather, I will soon – turned out to be too big for just one post.

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engels 10.30.09 at 1:08 pm

I suppose I’d like you to spell out exactly what the threshold of ‘minimal acccountability’ is that most domestic and international legal procedures have but that the UNSC procedure lacks. Is this a criticism of the composition of the Council or the democratic status of some of its members? (Btw Jack Straw was not elected by the population over which he exercises power as Secretary of State for Justice. Anyway, what if I’d said Lord Hoffmann?) The point about not codifying any widely held moral norm seems an odd one, as few legal procedures do this. (Incidentally I do think there is a widely held moral norm lying behind the establishment of the UNSC, which is that war should not be an instrument of international policy except for the purposes of self-defence and maintaining peace and security.) Finally I don’t see that you have successfully shown that the UNSC on the one hand and international humanitarian law on the other are separate and ‘incongruous’. Why do you say this? In your post you suggest in passing that they may have different ‘sources’ but I can not see that this is the case. The UNSC’s authority derives from the UN Charter, an important international treaty, while the humanitarian law you refer to also derives from treaties, notably the Geneva Conventions.

(Also, like Posner, I wonder if you appreciate how radical your argument really is. According to you the US and Britain did nothing wrong whatsoever in going to war without UN approval, they just made what was at best a tactical error. Many people around the world would strongly disagree with that.)

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