The Two World Orders
by Jed Rubenfeld
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What's the source of America's growing unilateralism? The easy answer is self-interest: We act unilaterally to the extent that we see unilateralism as serving our interests. But the answer prompts a more searching question: Why do so many Americans view unilateralism this way, given the hostility it provokes, the costs it imposes, and the considerable risks it entails? Americans sometimes seem unilateralist almost by instinct, as if it were a matter of principle. Might it be?
It will not do to trace contemporary U.S. unilateralism to the 18th-century doctrine of isolationism, for unilateralism is a very different phenomenon. An isolationist country withdraws from the world, even when others call on it to become involved; a unilateralist country feels free to project itself--its power, its economy, its culture--throughout the world, even when others call on it to stop. Although there may still be a thread of isolationism in the United States today, unilateralism, the far more dominant trend, cannot usefully be derived from it.
The search for an explanation should begin instead at the end of World War II. In 1945, when victory was at hand and his own death only days away, Franklin Roosevelt wrote that the world's task was to ensure "the end of the beginning of wars." So Roosevelt called for a new system of international law and multilateral governance that would be designed to stop future wars before they began. Hence, the irony of America's current position: More than any other country, the United States is responsible for the creation of the international law system it now resists.
The decisive period to understand, then, runs roughly from the end of the war to the present, years that witnessed the birth of a new international legal order, if not, as widely reported, the death of the Westphalian nation-state. America's leadership in the new internationalism was, at the beginning, so strong that one might be tempted to see today's U.S. unilateralism as a stunning about-face, an aberration even, which may yet subside before too much damage is done. But the hope that the United States will rediscover the multilateralism it once championed assumes that America and Europe were engaged in a common internationalist project after World War II. Was that in fact the case?
It's undoubtedly true that, after the war, Americans followed the path Roosevelt had charted and led Europe and the world toward an unprecedented internationalism. We were the driving force behind the United Nations, the primary drafters of the initial international human-rights conventions, the champions of developing an enforceable system of international law. Indeed, America pressed on Europe the very idea of European union (with France the primary locus of resistance). At the same time, America promoted a new constitutionalism throughout Europe and the world, a constitutionalism in which fundamental rights, as well as protections for minorities, were laid down as part of the world's basic law, beyond the reach of ordinary political processes.
How then did the United States move from its postwar position of leadership in the new international order to its present position of outlier?
The Cold War played an essential role in the change, fracturing the new international order before it had taken root. At the same time, the Cold War also had the effect of keeping the Atlantic alliance intact for many decades by suppressing divisions that would show themselves in full force only after 1989. When, in the 1990s, the United States emerged as the last superpower standing, it became much easier for the forces of European union to move ahead and for the buried divisions between America and its European allies to be made apparent. The most fundamental of those divisions had been the most invisible: From the start, the postwar boom in international and constitutional law had had different meanings in America and Europe--because the war itself meant different things in America and Europe.
At the risk of overgeneralization, we might say that for Europeans (that is, for those Europeans not joined to the Axis cause), World War II, in which almost 60 million people perished, exemplified the horrors of nationalism. Specifically and significantly, it exemplified the horrors of popular nationalism. Nazism and fascism were manifestations, however perverse, of popular sovereignty. Adolf Hitler and Benito Mussolini rose to power initially through elections and democratic processes. Both claimed to speak for the people, not only before they assumed dictatorial powers but afterward, too, and both were broadly popular, as were their nationalism, militarism, repression, and, in Hitler's case, genocidal objectives. From the postwar European point of view, the Allies' victory was a victory against nationalism, against popular sovereignty, against demo?cratic excess.
The American experience of victory could not have differed more starkly. For Americans, winning the war was a victory for nationalism--that is to say, for our nation and our kind of nationalism. It was a victory for popular sovereignty (our popular sovereignty) and, most fundamentally, a victory for democracy (our democracy). Yes, the war held a lesson for Americans about the dangers of democracy, but the lesson was that the nations of continental Europe had proven themselves incapable of handling democracy when left to their own devices. If Europe was to develop democratically, it would need American tutelage. If Europe was to overcome its nationalist pathologies, it might have to become a United States of Europe. Certain European countries might even need to have democratic institutions imposed upon them, although it would be best if they adopted those institutions themselves, or at least persuaded themselves that they had done so.
These contrasting lessons shaped the divergent European and American experiences of the postwar boom in international political institutions and international law. For Europeans, the fundamental point of international law was to address the catastrophic problem of nationalism--to check national sovereignty, emphatically including national popular sovereignty. This remains the dominant European view today. The United Nations, the emerging European Union, and international law in general are expressly understood in Europe as constraints on nationalism and national sovereignty, the perils of which were made plain by the war. They are also understood, although more covertly, as restraints on democracy, at least in the sense that they place increasing power in the hands of international actors (bureaucrats, technocrats, diplomats, and judges) at a considerable remove from popular politics and popular will.
In America, the postwar internationalism had a very different meaning. Here, the point of international law could not ultimately be antidemocratic or antinationalist because the Allies' victory had been a victory for democracy (American democracy) and for the nation (the American nation). America in the postwar period could not embrace an antinationalist, antidemocratic international order as Europe did. It needed a counterstory to tell itself about its role in promoting the new international order.
The counterstory was as follows: When founding the United Nations, writing the first conventions on international rights, creating constitutions for Germany and Japan, and promoting a United States of Europe, Americans were bestowing the gifts of American liberty, prosperity, and law, particularly American constitutional law, on the rest of the world. The "new" international human rights were to be nothing other than the fundamental guarantees made famous by the U.S. Constitution. Wasn't America light-years ahead of continental Europe in the ways of democracy? International law would be, basically, American law made applicable to other nations, and the business of the new internationalism would be to transmit American principles to the rest of the world. So of course America could be the most enthusiastic supporter of the new international order. Why would it not support the project of making the world more American?
In the American imagination, then, the internationalism and multilateralism we promoted were for the rest of the world, not for us. What Europe would recognize as international law was law we already had. The notion that U.S. practices--such as capital punishment--held constitutional by our courts under our Bill of Rights might be said to violate international law was, from this point of view, not a conceptual possibility. Our willingness to promote and sign on to international law would be second to none--except when it came to any conventions that might require a change in U.S. domestic law or policy. The principal organs of U.S. foreign policy, including the State Department and, famously, the Senate, emphatically resisted the idea that international law could be a means of changing internal U.S. law. In the 1950s, the United States refused to join any of the major human-rights and antigenocide conventions. The rest of the world might need an American-modeled constitution, but we already had one.
In part, this exceptionalist attitude reflected American triumphalism in the wake of the war; in part, it expressed American know-nothing parochialism; and, in part, it placated southern fears that U.S. participation in international rights agreements could loosen the chokehold in which American blacks were held. But it reflected something more fundamental as well: a conception of constitutional democracy that had been reaffirmed by the war. It was impossible for Americans to see the new international constitutionalism as Europeans saw it--a constraint on democratic nationalism--for that would have contradicted America's basic understanding of constitutional democracy.
It's essential here to distinguish between two conceptions of constitutionalism. The first views the fundamental tenets of constitutional law as expressing universal, liberal, Enlightenment principles, whose authority is superior to that of all national politics, including national democratic politics. This universal authority, residing in a normative domain above politics and nation-states, is what allows constitutional law, interpreted by unelected judges, to countermand all governmental actions, including laws enacted by democratically elected legislators. From this perspective, it's reasonable for international organizations and courts to frame constitutions, establish international human-rights laws, interpret these constitutions and laws, and, in general, create a system of international law to govern nation-states. I call this view "international constitutionalism."
Let me make the abstract picture more concrete. The Council of Europe--the first postwar organization of European states, and the progenitor of today's European Union--has a quasi-judicial branch, called the Commission on Democracy through Law (also called the Venice Commission), on which I have served for several years as the U.S. representative or observer. One of my first duties was to sit on a committee charged with drafting a constitution for Kosovo. The committee consisted of distinguished jurists and constitutionalists from all over Europe. We met in Paris and Venice, and the proceedings were professional and expert in every respect. But though the committee had visited Kosovo for three days, it had no Kosovar members. Uncertain as to whether their absence was deliberate, I made inquiries among the committee members. It was indeed intentional. The framing of a constitution was a delicate business, I was told, and to have involved Kosovars in the process would have impeded the committee's work and mired it in political infighting.
Might it therefore be desirable, I asked, to draft an explicitly transitional document, on the model of the interim South African constitution, one that created institutions through which local drafting and ratification of a permanent charter could later take place? No, was the committee's answer. We were drafting a constitution, and constitutions are not meant to be transitional documents.
The committee's attitude perfectly exemplified international constitutionalism, which is the dominant constitutional worldview in Europe. From this viewpoint, it's not particularly important for a constitution to be the product of a national participatory political process. What matters is that the constitution recognize human rights, protect minorities, establish the rule of law, and set up stable, democratic political institutions, preferably of a parliamentary variety, in which the chief executive is not directly elected by the people. National ratification of a new constitution might be instrumentally valuable, but having a committee of expert foreign jurists draw up a constitution would be perfectly satisfactory in principle. Having that constitution imposed on the society by an occupying power would be awkward, but so long as the occupying power was recognized as valid under international law, and so long as the constitution took, imposing it by force would be entirely acceptable.
The alternative to international constitutionalism is American, or democratic, national constitutionalism. It holds that a nation's constitution ought to be made through that nation's democratic process, because the business of the constitution is to express the polity's most basic legal and political commitments. These commitments will include fundamental rights that majorities are not free to violate, but the countermajoritarian rights are not therefore counterdemocratic. Rather, they are democratic because they represent the nation's self-given law, enacted through a democratic constitutional politics. Over time, from this perspective, constitutional law is supposed to evolve and grow in a fashion that continues to express national interpretations and reinterpretations of the polity's fundamental commitments.
In American constitutionalism, the work of democratically drafting and ratifying a constitution is only the beginning. Just as important, if not more so, is the question of who interprets the constitution. In the American view, constitutional law must somehow remain the nation's self-given law, even as it is reworked through judicial interpretation and reinterpretation, and this requires interpretation by national courts. By contrast, in international constitutionalism, interpretation by a body of international jurists is, in principle, not only satisfactory but superior to local interpretation, which invariably involves constitutional law in partisan and ideological political disputes.
The overtly political nature of American constitutional law stuns Europeans; indeed it's one of the features of the American system at the root of the differences between American and European constitutionalism. Claims about "American realism" are often exaggerated, but there is undoubtedly in the United States a greater understanding than in Europe that all law, including judge-made law (i.e., judicial decisions), and even judge-made constitutional law, is a political product. From an American point of view, if the law is to be democratic, the law and the courts that interpret it must retain strong connections to the nation's democratic political system. By contrast, the processes through which EU law has emerged so far betray a disconnection with, and even a disrespect for, democratic processes that would be unacceptable as a basis for constitutional transformation in the United States.
Americans at bottom do not believe in the claims made for a nonpolitical, neutral constitutional law. They know that judges' values inevitably inform constitutional law. Europeans tend to have a different understanding. To be sure, there was for a long time, and perhaps still is, a European tradition of distrust of judges, especially constitutional judges, shared by left-wing and right-wing European political thinkers. Yet this skepticism about "government by judici?ary" coexisted with a belief in the possibility of an expert, neutral bureaucratic rationality and a dogmatic, apolitical legal reason. The result was a deeply ambiguous attitude toward judicial review and constitutional law. Before World War II, Europe had some constitutional courts, but these courts had almost no power to strike down laws on the ground that individuals' rights had been violated.
Postwar European constitutionalism has shed this equivocation. European constitutionalism today invests courts with full jurisdiction over individual rights, without fully acknowledging that judicial decisions about the meaning of constitutional rights are fundamentally political in character. On the contrary, what makes the new European constitutionalism cohere, and gives European constitutional courts their claim to legitimacy, is the ideology of universal or "international" human rights, which owe their existence to no particular nation's constitution, or which, if they derive from a national constitution, possess nonetheless a kind of supranational character, rendering them peculiarly fit for interpretation by international juridical experts. In America, by contrast, it would be nothing short of scandalous to suggest that U.S. constitutional questions had to be decided by an international tribunal claiming supremacy over our legal system.
From the American perspective, national constitutional courts are an essential feature of constitutional law, and it's critical that constitutional interpretation remain interwoven with the nation's processes of democratic self-governance. This is done in various ways: through a politically charged judicial nomination mechanism; through judges' membership in the national polity and the nation's particular political and legal culture; through the always-open possibility of amendment; and, perhaps most important but least understood, through periodic but decisive contests between the judicial and political branches. (The most famous 20th-century example was the confrontation between Franklin Roosevelt and the Supreme Court of the 1930s, which repeatedly struck down New Deal legislation--a battle Roosevelt won only after pro?posing to appoint six additional justices to the court.) These clashes are too often portrayed as moments of institutional peril to be avoided at all costs. In reality, they play a crucial role in maintaining the judiciary's connections to a nation's long-term democratic development. The ideal is not to make constitutional courts responsive to popular will at any given moment, but to make sure that constitutional law remains answerable to the nation's project of political self-determination over time.
To summarize: International constitutionalism contemplates a constitutional order embodying universal principles that derive their authority from sources outside national democratic processes and that constrain national self-government. American or democratic national constitutionalism, by contrast, regards constitutional law as the embodiment of a particular nation's democratically self-given legal and political commitments. At any particular moment, these commitments operate as checks and constraints on national democratic will. But constitutional law is emphatically not antidemocratic. Rather, it aims at democracy over time. Hence, it requires that a nation's constitutional law be made and interpreted by that nation's citizens, legislators, and judges.
Let me give three illustrations--in turn, historical, theoretical, and practical--that make plain the contrast between American and European conceptions of constitutionalism. In 1789, the popular assembly of France promulgated the Declaration of the Rights of Man. The document spoke in the language of universal rights. The rights of man were at issue, not merely the rights of Frenchmen. That same year, the U.S. Congress promulgated the Bill of Rights, which, far from proclaiming universal law, originally applied only to the federal government and not to the state governments. Thus, the First Amend?ment forbade national religious establishments but not religious establishments in the states. The U.S. Constitution did not speak in the language of universal rights. It spoke in the language of popular sovereignty: "We the People of the United States . . . do ordain and establish. . . ." American constitutional law was understood from the outset to be part of the project of popular self-government, as op?posed to an external force checking that project. The Amer?ican language of constitutional rights, properly understood, does not claim the authority of universal law. It claims, rather, the authority of democracy.
A second illustration of the contrast between the two types of constitutionalism makes the point at the level of theory. Contemporary American constitutional theorists are unendingly concerned with the so-called countermajoritarian difficulty: Because constitutional law allows unelected judges to override the outcomes of the majoritarian democratic process, it's potentially in conflict with democracy. Europeans constitutionalists used to share this obsession, but since 1945, and particularly with the recent explosion of "international human-rights" law, the countermajoritarian difficulty rarely figures in European thinking any more. The reason is that Europeans have embraced international constitutionalism, according to which the whole point of constitutional law is to check democracy. For Americans, constitutional law cannot merely check democracy. It must answer to democracy--have its source and basis in a democratic constitutional politics and always, somehow, be part of politics, even though it can invalidate the outcomes of the democratic process at any given moment.
The third contrast is more practical. It involves the question of whether there must be one order of human rights applicable to all nations. In the European view, human rights transcend national politics and ought, at least ideally, to be uniform throughout the world. For example, European nations--or at least European governments--now see capital punishment as a human-rights violation. Accordingly, European diplomats and politicians not only excoriate the United States for allowing the death penalty but even call for our expulsion from international organizations such as the Council of Europe. The American view holds that democratic nations can sometimes differ on matters of fundamental rights. For example, freedom of speech is stronger in America than in many other nations; an individual has the constitutional right in the United States to make statements in favor of Nazism that might land the person in jail in Germany. Yet the United States does not demand that Germany change its law on this point or risk expulsion from international organizations. Again, in America today, it's a bedrock principle of constitutional freedom that there be no established church at any level of government. But the American position does not require every nation with an established church--such as England or Italy--to disestablish.
For Europeans, a great marker of successful constitutional development is international consensus and uniformity. They point to such consensus as if agreement through?out the "international community" were itself a source of legal validation and authority. The more consensus there is on a constitutional principle throughout the international community, the greater the strength of that principle. Americans do not share this view. We've learned to see our own constitutional judgments as worth defending even during periods when most of the nations of Europe scorned or violated them. For Americans, a democratic nation's constitutional law is supposed to reflect that nation's fundamental legal and political commitments. Consensus in the "international community" is not the compelling source of legal or constitutional authority that it's made out to be in the European perspective.
Whether out of hubris or principle, or both, the United States has not understood its support for international law and institutions to imply a surrender of its own commitment to self-government. As the international system became more powerful, and international law diverged from U.S. law, the United States inevitably began to show unilateralist tendencies--not simply out of self-interest but because the United States is committed to democratic self-government. The continental European democracies, with their monarchical histories, their lingering aristocratic cultures, and their tendency to favor centralized, bureaucratic governance, have always been considerably less democratic than the American democracy. It's not surprising, then, that in forging the European Union they should be so tolerant of what Europeans casually refer to as the Union's "democratic deficit."
Three specific developments over the past decade helped press the United States toward unilateralism: the 1999 military intervention in Kosovo; a growing skepticism about international law, including the concern that international law might be used as a vehicle for anti-Americanism; and the events of September 11, 2001. Each merits additional consideration.
For many in the United States, the Kosovo intervention stands today as a unilateralist precedent. Because the UN Security Council never approved the use of force in Kosovo, international lawyers regarded the U.S.-led bombing as plainly illegal. But this asserted illegality has not caused Amer?icans to regret the intervention. On the contrary, it has reinforced the view that events in the former Yugoslavia represented an appalling failure on the part of the international law system, the United Nations, and, in particular, the nations of Eur?ope. From the American perspective, if the UN-centered international law system could not bring itself to authorize the use of force in Kosovo, then that system was incapable of discharging the responsibility that is an essential corollary of authority.
The United States had no compelling territorial, imperial, or economic interests in Kosovo. The intervention sought rather, at least in the American account, to prevent manifest, grotesque, genocidal crimes. And if the United Nations did not respond to the most blatant, wanton, and massive of human rights violations in Kosovo, how could it be trusted to respond to less demonstrable but perhaps more dangerous threats elsewhere?
Kosovo is a doubly significant precedent because it illustrates how Americans do not quite recognize the UN Charter as law. American society is notorious for turning political questions into legal ones. Yet Americans, including American lawyers, were and are largely uninterested in the Kosovo bombing's asserted illegality under the UN Charter. The same broad indifference would emerge again when internationalists claimed that the war in Iraq was illegal.
To be sure, some American international-law specialists are interested in these issues, but they are often perceived by the rest of the U.S. legal world to be speaking a foreign language, or not so much a language as a kind of gibberish lacking the basic grammar--the grammar of enforceability--that alone gives legal language a claim to meaning. Kosovo symbolizes not merely an exceptional, exigent circumstance in which the United States was justified in going outside the UN framework, but rather an entire attitude about that framework, according to which the UN system, while pretending to be a legal system, isn't really a legal system. And what, in this view, is the United Nations really about? The several possible answers to the question are not attractive: hot air, a corrupt bureaucracy, an institution that acts as if it embodied world democracy when in reality its delegates represent illegitimate and oppressive autocracies, an invidious wonderland where Libya can be elected president of a human-rights commission.
A second spur to U.S. unilateralism has been a growing skepticism about the agenda the "international legal community" has been pursuing. The skepticism is partly due to the proliferation of human rights conventions that are systematically violated by many of the states subscribing to them. A good example is the convention banning discrimination against women, which the United States has been almost alone in refusing to ratify. But what is one to make of the fact that the signatory nations include Saudi Arabia and other states not exactly famous for respecting women's equality?
A deeper reason for the skepticism lies in the indications that international law may be used as a vehicle for anti-American resentments. A case in point is the position taken by the "international community" with respect to the continuing use of capital punishment in some American jurisdictions. Most Americans, whatever their view of capital punishment, can respect the moral arguments that condemn the death penalty. But what many Americans have trouble respecting or understanding is the concerted effort to condemn the United States as a human-rights violator because of the death penalty and to expel the United States from international organizations on that ground. When the international community throws down the gauntlet over the death penalty in America while merely clearing its throat about the slaughter in Yugoslavia, Americans can hardly be blamed if they see a sign that an anti-American agenda can be expected to find expression in international law.
This is not a purely speculative concern. Given that the U.S.-led military interventions in Kosovo and Iraq were probably in violation of international law, might U.S. officers therefore be liable to criminal prosecution in international courts? No, say the international lawyers. Americans need not fear criminal repercussions because international law "clearly" distinguishes between jus ad bellum, the law that determines whether the use of military force is legal, and jus in bello, the law that determines whether particular acts undertaken during armed hostilities are criminal. But academic certainty about the "clear" meaning of law has never been a reliable predictor of how the law will actually be interpreted by courts. How can Americans be certain that the international law system will not embrace the perfectly reasonable logic under which an unlawful bombing becomes a criminal act, especially when Americans have acted unilaterally? This possibility may help explain U.S. resistance to the International Criminal Court.
The events of September 11, 2001, had obvious implications for U.S. unilateralism. There was a critical period in the weeks following the massacre when a renewed U.S. multilateralism in the prosecution of the war against terrorism seemed a distinct possibility. Americans were stunned by the prevalence and intensity of anti-American sentiments expressed all over the world. Even Europeans who condemned the attacks frequently suggested, implicitly and explicitly, that the United States had it coming, that the motives behind the attack were understandable, and that the massacre, though reprehensible, might have a salutary effect on U.S. policy. A period of soul-searching followed in the United States. It lasted maybe a month and ended with a characteristically American reaction: to hell with them.
So began the rhetoric that continues to escalate today. The White House took increasingly belligerent positions, which elicited new denunciations of our bullying, and the denunciations spurred Americans to feel more and more that they would have to fight this world war on their own. The fighting in Afghanistan hardened that resolve. For whatever reason, the European nations, with the exception of Great Britain, contributed almost nothing to the war, and instead issued repeated warnings that the war might be illegal, that the bombings could be considered war crimes if too many civilians died, and that the fight, in any case, would be unwinnable once the opposition took to the mountains. Did we win? That remains to be seen. But the American experience of the Afghan campaign was of an overwhelming, unexpectedly swift victory--achieved essentially without the help of the international community. And this made possible the war in Iraq.
Because of that war, U.S. unilateralism is now identified in many people's minds with U.S. military aggression and the occupation of Iraq. I am not arguing here either for or against the Iraq War; the case for U.S. unilateralism does not turn on the justifiability of that war. The fundamental question is this: Which of two visions of world order will the United States use its vast power to advance? Since World War II, much of "old" Europe has been pursuing an antinational, antidemocratic world constitutionalism that, for all its idealism and achievements, is irreconcilable with America's commitment to democratic self-government.
There is, among international lawyers, a hazy notion that the emergence of the international community in the world of law and politics is itself a democratic development. The unfortunate reality, however, is that international law is a threat to democracy and to the hopes of democratic politics all over the world. For some, that may be a reason to support internationalism; for others, a reason to oppose it. Either way, the fundamental conflicts between democracy and international law must be recognized.
The United Nations and the other institutions of international law take world government as their ideal. In theory, there's no necessary conflict between democracy and the ideal of a world government. A world government could be perfectly democratic--if there were world democracy. But at present, there is no world democracy, and, as a consequence, international governance organizations are, at present, necessarily and irremediably antidemocratic.
The antidemocratic qualities of the United Nations, the International Monetary Fund (IMF), and other international governance organizations--their centralization, their opacity, their remoteness from popular or representative politics, their elitism, their unaccountability--are well known. Internationalists counter this criticism by pointing to the growing influence of "nongovernmental organizations" (NGOs) in international law circles, as if these equally unaccountable, self-appointed, unrepresentative organizations somehow spoke for world public opinion. But the fundamentally antidemocratic nature of international governance is not merely a small hole that NGOs might plug. World government in the absence of world democracy is necessarily technocratic, bureaucratic, diplomatic--everything but democratic.
Nor are international organizations undemocratic only in themselves; they undermine the hopes and vitality of democratic politics elsewhere. The point is familiar to every nation in Latin America that has seen its internal policies dictated by IMF or World Bank directives. To an increasing extent, democratic politics throughout the developing world is being displaced by a relentless demand for competitiveness and growth, which are authoritatively interpreted by international organs to require the implementation of designated social, political, and economic policies (so far, these have had rather mixed success in delivering competitiveness and growth, though they have contributed to several national catastrophes, as in Argentina).
The irony is that the United States remains the world's greatest champion of internationalism in economic affairs. Weaker countries correctly perceive U.S.-led marketization programs as deeply undercutting their own ability to decide for themselves what their social and economic policies should be. To be sure, the United States does not exactly force economic policy on other countries. Ruling elites agree to the emasculation of their countries' politics in order to get their hands on the money. But the result is the same: Democracy is hollowed out.
So all the talk of U.S. unilateralism needs an important qualification. The United States plays utterly contradictory roles on the international stage: It champions multilateralism on the economic front, because worldwide free trade and marketization are perceived to serve U.S. interests, and resists it elsewhere. But if a commitment to democracy is what underlies America's growing unilateralism today on matters of war, criminal law, human rights, and the environment, that commitment is violated wherever U.S.-led international economic organizations cripple the possibilities of democracy under the guise of free-trade principles and loan conditionality.
The American and French revolutions tied democracy to the ideal of a self-determining nation. (If the European Union should successfully forge itself into a democratic mega-nation, it would be another example of this linkage, not a counterexample.) Two hundred years later, there remains no realistic prospect of world democracy, and if there were such a prospect, the United States would resist it, because world decision making would very likely be unfriendly to America. But though the United States would be no friend of world democracy, it ought to be a friend to a world of democracies, of self-governing nation-states, each a democracy in its own politics. For now, the hopes of democratic politics are tied to the fortunes of the nation-state.
Europeans tend to neglect or minimize the damage that universal constitutionalism does to the prospects for variation, experimentation, and radical change opened up by national democracy. So long as democracy is allied with national self-government rather than with world governance, it remains an experimental ideal, dedicated to the possibility of variation, perhaps radical variation, among peoples with different values and different objectives. Democratic national constitutionalism may be parochial within a given nation, but it's cosmopolitan across nations. Democratic peoples are permitted, even expected, to take different paths. They're permitted, even expected, to go to hell in their own way.
That is what the ideology of international human rights and of a global market will not allow. Both press for uniformity among nations on some of the most basic questions of politics. Both, therefore, stand against democracy.
The response from the Right will be that a market economy is a precondition of a flourishing democracy, so international free trade and lending institutions cannot be called antidemocratic. Rejecting the Right's claim to the transcendental democratic necessity of the IMF or the World Trade Organization, the Left will reply that the existence of a capitalist economy and the particular form it should take are matters for independent nations to decide for themselves. But the Left, for its part, will insist that international human rights, the abolition of the death penalty, and environmental protections are necessary preconditions of democracy. To which the Right will reply that these are matters for independent nations to decide for themselves.
Claims that any particular multilateral order, whether humanitarian or economic, is a necessary condition of democracy should be received with extreme skepticism. We all tend to sympathize with such claims when they're made in behalf of policies we support, but to see through the same claims when they're in behalf of policies we oppose. To be sure, in some cases of national crisis and political breakdown, international governance has brought about stability and democratization. And for the many nations incapable at present of sustaining a flourishing democratic politics, international law offers the hope of economic and political reforms these nations cannot achieve on their own. But every time a functioning, self-determining nation surrenders itself to the tender mercies of international economic or political regimes, it pays a price. The idea that men and women can be their own governors is sacrificed, and democracy suffers a loss.
The justification of unilateralism outlined here is not intended to condone American disdain for the views of other nations. On the contrary, America should always show a decent respect for the opinions of the rest of mankind, and America would be a far safer, healthier place if it could win back some of the support and affection it has lost. Unilateralism does not set its teeth against international cooperation or coalition building. What sets its teeth on edge is the shift that occurs when such cooperation takes the form of binding agreements administered, interpreted, and enforced by multilateral bodies--the shift, in other words, from international cooperation to international law. America's commitment to democratic self-government gives the United States good reason to be skeptical about--indeed, to resist--international legal regimes structured, as they now are, around antinationalist and antidemocratic principles.
The unilateralism I am defending is not a license for aggressive U.S. militarism. It is commanded by the aspirations of democracy and would violate its own essential principles if it were to become an engine of empire. But the great and unsettling fact of 21st-century global governance is that America is doomed to become something like a world policeman. With the development of small, uncontainable nuclear technologies, and with the inability of the United Nations to do the job, the United States will be in the business of using force abroad against real or feared criminal activity to a far greater extent than ever before.
This new American role will be deeply dangerous, to other nations and to our own, not least because American presidents may be tempted to use the role of world's law enforcer as a justification for a new American militarism that has the United States constantly waging or preparing for war. If the United States is going to act unilaterally abroad, it's imperative that in our domestic politics we retain mechanisms for combating presidential overreaching.
Since September 11, 2001, the White House has flirted with a dangerous double unilateralism, joining the president's willingness to act without international consent abroad to an effort to bypass Congress and the judiciary at home. In December 2001, without congressional approval, the president announced the withdrawal of the United States from an important missile treaty with Russia. In early 2002, the White House began claiming a presidential power to deem any individual, including an American citizen arrested on American soil, an "enemy combatant" and on that basis to imprison him indefinitely, with no judicial review. Later that year, the president came close to asserting a power to make war on Iraq without express congressional authorization.
This double unilateralism, which leaves presidential power altogether unchecked, is a great danger. If we are to be unilateralists abroad, we have a special responsibility--to ourselves and to the world--to maintain and reinvigorate the vital checks and balances of American constitutionalism at home.
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Jed Rubenfeld is the Robert R. Slaughter Professor of Law at Yale University and author of Freedom and Time: A Theory of Constitutional Self-Government (2001).
Reprinted from Autumn 2003 Wilson Quarterly
This article may not be resold, reprinted, or redistributed for compensation of any kind without prior written permission from the author. For further reprint information, please contact Permissions, The Wilson Quarterly, One Woodrow Wilson Plaza, 1300 Pennsylvania Avenue, NW, Washington, D.C.
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Leading Through Law
by Anne-Marie Slaughter
Related Articles
Green Fatigue by Stacy D. VanDeveer
The Two World Orders by Jed Rubenfeld
Sometimes a Great Notion by Michael J. Glennon
Two Cheers for International Law by Oona A. Hathaway
Does the United States need international law? At times in recent years, it has acted as if it does not. Yet international law provides the foundation not only for momentous undertakings, such as the efforts to halt the spread of nuclear weapons and to protect the ozone layer, but also for more routine endeavors, such as defining the boundaries of territorial seas and guaranteeing the right of diplomats to move freely. The United States needs international law acutely now because it offers a way to preserve our power and pursue our most important interests while reassuring our friends and allies that they have no reason to fear us or to form alliances as a counterweight to our overwhelming might. And we will need the law more than ever in the future, to regulate the behavior not only of states but of the individuals within them.
International law is not some kind of abstract end in itself. It's a complex of treaties and customary practices that govern, for example, the use of force, the protection of human rights, global public health, and the regulation of the oceans, space, and all other global commons. Each of its specialized regimes is based in the consent of states to a specific set of rules that allow them to reap gains from cooperation and thereby serve their collective interests. Overall, the rule of law in the global arena serves America's interests and reflects its most fundamental values. But in many specific areas, existing rules are too weak, too old, or too limited to address current threats and challenges. The United States must recommit itself to pursuing its interests in concert with other nations, according to principles of action that have been agreed upon and that are backed by legal obligation, political will, and economic and military power. At the same time, it has every right to insist that other nations recognize the extent to which many rules must be revised, updated, and even replaced.
International law provides the indispensable framework for the conduct of stable and orderly international relations. It does not descend from on high. Rather, it's created by states to serve their collective interests. Consider, for instance, the concept of sovereignty itself, which is routinely described as the cornerstone of the international legal system. Sovereignty is not some mysterious essence of statehood. It is a deliberate construct, invented and perpetuated by states seeking to reduce war and violence in a particular set of historical circumstances.
The founding myth of modern international law is that the Treaty of Westphalia, which ended the Thirty Years' War in 1648, gave birth to the system of states and the concept of inviolable state sovereignty. The Thirty Years' War was the last of the great religious wars in Europe, which were fought not really between states as such but between Catholics and Protestants. As religious minorities in one territory appealed to the coreligionist monarch of another, the Continent burned for three decades, and its people bled in a series of battles among the Holy Roman Empire, France, Sweden, Denmark, Bohemia, and a host of smaller principalities. The Treaty of Westphalia restored the principle of cuius regio eius religio--that is, the prince of a particular region determines the religion of his people. In today's language, this means that one sovereign state cannot intervene in the internal affairs of another.
But in reality, it took centuries for the modern state system to develop, and absolute sovereignty has never existed in practice, as many states on the receiving end of great-power interventions would attest. The architects of the Treaty of Westphalia glimpsed a vision of a world of discrete states armored against one another by the possession of "sovereignty"--a doctrine of legal right against military meddling.
It's important to realize that the right of sovereignty did not mean the prohibition of war. States were still free to go to war, as a matter of international law, until the Kellogg-Briand Pact of 1928 formally outlawed war (to evidently little effect). Sovereignty was the foundation on which modern states were built, but as they matured, their attacks on one another rapidly became the principal threat to international peace and security. After the conflagrations of World War I and World War II, it was evident that if interstate war continued unchecked, states--and their peoples--might not survive into the 21st century. Hence, the innovation of the United Nations Charter: Article 2(4) required all states to refrain from "the use of force in their international relations against the territorial integrity or political independence of any state." The right of sovereignty no longer included the right to make war.
Further, given the apparent link between Adolf Hitler's horrific depredations against the German people and his aggression toward other states, the right of sovereignty became increasingly encumbered with conditions on a sovereign state's treatment of its own people. Thus was born the international human rights movement, which today has turned traditional conceptions of sovereignty almost inside out. A distinguished commission appointed by the Canadian government at the suggestion of the UN secretary general released a report at the end of 2001 that defined a state's membership in the United Nations as including a responsibility to protect the lives and basic liberties of its people--and noting that if a member state failed in that responsibility, the international community had a right to intervene.
Why such a shift? Because the decade after the Cold War, much like the decades before the Treaty of Westphalia, revealed a seething mass of ugly conflicts within states. The dividing lines in those conflicts were drawn by ethnicity as much as religion, and the divisions were almost always fueled by opportunistic leaders of one faction or another. But unlike in the 16th and 17th centuries, the danger as the 20th century drew to a close was not so much from one sovereign's meddling in the affairs of another as in the failure of regional and international institutions to intervene early enough to prevent the conflicts from boiling into violence--producing streams of refugees and heartbreaking pictures broadcast into living rooms around the world.
The story of sovereignty, even highly simplified, illustrates a basic point about international law. It is an instrumental rather than an essential body of rules, instrumental to achieving the goals of peace, order, justice, human dignity, prosperity, and harmony between human beings and nature--in short, those ends that reflect the changing hopes and aspirations of humankind. It is a highly imperfect instrument, as indeed is domestic law. Because international law regulates a society of states with no central authority, it lacks even the hint of coercion that's implicit in every encounter with a domestic police officer. It can be enforced by the military might of one or more nations, but that sort of enforcement is the exception rather than the rule.
Yet for all its imperfections, international law survives because it is the only alternative for nations seeking to regularize their relations with one another and bind together credibly enough to achieve common gains. Inter?national law allows diplomats to escape parking tickets in New York City because without diplomatic immunity embassies would close. It allows a nation to set aside 12 miles of territorial waters for the use of its own fishing boats rather than just three or five or seven. And it allowed the first President Bush to assemble a UN coalition against Iraq quickly and easily in 1991 because Iraq had so flagrantly violated the UN Charter by invading Kuwait.
In the 1980s, political scientists such as Robert Keohane, Steve Krasner, and John Ruggie demonstrated more precisely what international lawyers had long believed: "Regimes," meaning everything from treaties to organizations to customary practices, allow nations to overcome a dilemma. The best solution to a problem can be achieved only through cooperation, but any individual state risks a "sucker's payoff" if it acts cooperatively and other states do not. Rules and settled practices overcome this dilemma by making it easier for states to negotiate credible commitments, to gather and share information, and to monitor one another and develop reputations for good or bad behavior.
America's Founding Fathers knew that the United States needed international law as a shield to protect a new and weak nation. They went to great pains to declare their new democracy a law-abiding member of the society of nations. The Declaration of Independence set forth the legal case for revolution out of "a decent respect to the opinions of mankind." The Constitution enshrined treaties as "the supreme law of the land," alongside the Constitution itself and federal law. The first Congress made it possible for aliens to sue in U.S. federal courts "for a tort only, in violation of the law of nations." The statute was originally intended to assure foreign citizens and their governments that they would find sure redress in U.S. courts for violations of the laws governing relations among countries, such as diplomatic immunity. Today, it allows foreign victims of grave human-rights violations to sue their torturers if they find them on U.S. soil.
Just over a century after its founding, the United States was an emerging power with a new prominence in world affairs. Yet its commitment to international law remained firm--much more so, in fact, than we generally recognize today. Though most accounts of the crucial period after World War I are dominated by the struggle between President Woodrow Wilson and the American isolationists who opposed his vision of world order, an important group of Republicans championed a view of international relations that rested on a commitment to
international law more zealous than Wilson's. The leader of
this group was Elihu Root (1845-1937), the most distinguished lawyer-statesman of his day, who served as secretary of war under William McKinley, secretary of state under Theo?dore Roosevelt, and as a U.S. senator from New York. As Jonathan Zasloff recalls in New York Uni?ver?sity Law Review (April 2003), more than a decade before Wilson championed his great cause, Root was developing and implementing a distinctive vision of world order based solely on law. Using the kind of rhetoric that would later be associated with Wilson, Root scornfully declared that diplomacy in the past had "consisted chiefly of bargaining and largely cheating in the bargain." But unlike Wilson, who would propose a new international system based on the global spread of democracy and the political and military power of the League of Nations, Root argued for a system based strictly on law.
During the debate over the League, Root, though retired from the Senate, was the principal architect of Republican strategy. Leading Republican senators embraced U.S. engagement with the world, but only on the basis of law, not of binding military and political obligations. They supported legal institutions such as the Permanent Court of Arbitration (established in The Hague in 1899) and the new Permanent Court of International Justice (created by the League of Nations in 1921). But they rejected the collective security guarantee that lay at the core of the League Covenant. They would vote for the Covenant only with reservations attached. Root himself denounced the Covenant for abandoning "all effort to promote or maintain anything like a system of international law, or a system of arbitration, or of judicial settlement, through which a nation can assert its legal rights in lieu of war." Wilson, however, would accept no compromise, and the Covenant was defeated.
Root worked hard throughout his life to put his vision into effect (in 1912 he won the Nobel Peace Prize, in part for negotiating treaties of arbitration be?tween the United States and more than 40 other nations). But the Japanese invasion of Man?churia in 1931 and the remilitarization of the Rhineland in 1936 made the shortcomings of both isolationism and pure legalism evident. In 1945, Repub?licans and Democrats finally came together in strong support of a new international legal order in the United Nations, but one that melded law and power. The UN Charter was written, as Time put it, "for a world of power, tempered by a little reason." The provisions giving the Soviet Union, China, Britain, France, and the United States permanent seats on the Security Council, along with veto power over Council actions, were recognition that a law-based order has to accommodate the realities of great-power politics.
The interesting question is why the United States, the overwhelmingly dominant power at the end of World War II, would choose to embed itself in a web of international institutions--not just the United Nations but the World Bank, the International Monetary Fund, the General Agreement on Tariffs and Trade, and the North Atlantic Treaty Organization. In After Victory (2000), political scientist John Ikenberry argues compellingly that the United States pursued an institutional strategy as a way of entrenching a set of international rules favorable to its geopolitical and economic interests. Along the way, however, it was repeatedly compelled to accept real restraints on American power in order to assure weaker states in its orbit that it would neither abandon nor dominate them. For instance, U.S. officials had a sophisticated strategy for rebuilding Western Europe and integrating West Germany into a Western European order but sought to keep America aloof from the process. The Europeans, Ikenberry writes, "insisted that the binding together of Europe was only acceptable if the United States itself made binding commitments to them." The power of the United States to build a political order thus required the nation's willingness and ability to tie itself to a legal order.
Since the end of the Cold War, as Americans seem never to tire of repeating, America's power relative to that of other nations has only increased. But instead of hastening to reassure weaker nations by demonstrating our willingness to accept rules that further the common good, the United States is coupling its explicit drive for primacy with an equally explicit disdain for a whole range of treaties. Consider the current U.S. opposition to virtually all arms-control treaties--land mines, small arms, the Comprehensive Test Ban Treaty, the Anti-Ballistic Missile Treaty--and to efforts to strengthen existing treaties on biological and chemical warfare. The result? Nations around the world are arming themselves, if not directly against us, then at least, as in the case of the European Union, to ensure that they have an independent military capability.
The 1945 strategy was the right one, and it is now more essential than ever. We have an opportunity to lead through law, not against it, and to build a vastly strengthened international legal order that will protect and promote our interests. If we are willing to accept even minimal restraints, we can rally the rest of the world to adopt and enforce rules that will be effective in fighting scourges from terrorism to AIDS. The Bush administration, or rather some of its leading members, have constructed and promoted a simplistic dichotomy: international law versus national sovereignty. The ridiculousness of that position is evident the minute one turns to the international economic arena, where the World Trade Organization has the power to impose enormous constraints on U.S. sovereignty. A panel of three independent trade experts, for example, can rule on the legality or illegality of a federal statute under international trade law, and then enforce its judgment by authorizing trade sanctions against the United States by all WTO members. No human rights or arms control treaty has teeth nearly as sharp. Yet the Bush administration strongly supports an expansion of the WTO regime. Why? Because the free-trade system ensured by the WTO yields benefits that greatly outweigh the costs of constraints on American freedom of action.
That is the right kind of calculus to make, rather than resorting to knee-jerk appeals to national sovereignty and fearmongering about world government. And by that sort of calculus, at a time when the United States is frightening and angering the rest of the world, the benefits--to ourselves and to other nations--of demonstrating once again that we are a superpower committed, at home and abroad, to the rule of law far outweigh the costs of self-imposed multilateralism.
International law today is undergoing profound changes that will make it far more effective than it has been in the past. By definition, international law is a body of rules that regulates relations among states, not individuals. Yet over the course of the 21st century, it will increasingly confer rights and responsibilities directly on individuals. The most obvious example of this shift can be seen in the explosive growth of international criminal law. Through new institutions such as the International Criminal Court, created in 2003 and based in The Hague, the international community is now holding individual leaders directly accountable for war crimes, crimes against humanity, and genocide. Most important, under a provision that was insisted on by the United States, all nations that are party to the treaty have committed themselves to domestic prosecutions of potential defendants before the court. Only if the states prove unable or unwilling to undertake these prosecutions will the court have jurisdiction. Under this arrangement, for example, Chile would have had primary responsibility to prosecute former dictator Augusto Pinochet as soon as he was out of office. If the Chilean prosecutors and courts had failed to act, he would have been remitted to The Hague. (Instead, Pinochet was arrested in Britain in 1998, under a warrant issued in Spain, and after being returned to Chile was ultimately spared prosecution because of ill health.) The political effect of this provision is a much-needed strengthening of those forces in every country that seek to bring to justice perpetrators of such crimes within their countries.
But criminal law is only one field of change. A similarly radical departure from the traditional model of state-to-state relations is reflected in the 1994 North American Free Trade Agreement. Under its terms, individual investors can sue NAFTA member states directly for failing to live up to their treaty obligations. In one celebrated case, a Canadian funeral home conglomerate is suing the United States for $725 million over a series of Mississippi state court decisions that it claims deliberately and unfairly forced it into bankruptcy; the decisions allegedly violated NAFTA guarantees that Canadian and Mexican inves?tors will be granted equal treatment with domestic U.S. corporations. The WTO grows out of a more traditional form of law in which only states can bring suit against one another, but even in the WTO, evidence of the new trend can be seen in the knots of lawyers who congregate outside WTO hearing rooms to represent the interests of individual corporations directly affected by the rulings of the organization's dispute resolution panels. And now nongovernmental organizations such as Environmental Defense and Human Rights Watch are fighting for the right to submit briefs directly in cases that raise important environmental or human-rights issues.
As they come increasingly to apply directly to individuals, future international legal regimes will have more teeth than ever before--through links to domestic courts and by building up a direct constituency of important voters in important countries. The United States has long complained about the weaknesses of international treaty regimes, worrying that they bind states with strong domestic traditions of the rule of law but allow rampant cheating by states that lack such traditions or are without systems of domestic governance that check the power of leaders disinclined to follow the rules. Now is the moment to begin putting these international regimes on a new foundation, allowing them to penetrate the shell of state sovereignty in ways that will make the regimes much more enforceable.
If the United States participates in the formation of these new regimes and the reformation of the old, in areas that include foreign investment, anticorruption measures, environmental protection, and international labor rights, it can help shape a new generation of international legal rules that advance the interests of all law-abiding nations. If it does not participate, U.S. citizens will be directly affected by international rules that ignore U.S. interests. To take only one example, suppose the EU participated with other nations in drafting an international environmental treaty that imposed sanctions on corporations that didn't follow certain pollution regulations. The United States could stay out of the treaty, but any American corporation seeking to do business in the EU would be affected.
The United States needs international law, but not just any international law. We need a system of laws tailored to meet today's problems. The Bush administration is right to point out that the rules developed in 1945 to govern the use of force don't fit the security threats the world faces in 2003. But those aren't the only rules in need of revision. Well before September 11, politicians and public figures were calling for major changes in the rules governing the global economy (remember the cries for a "new global financial architecture"?), a redefinition of the doctrine of humanitarian intervention, and major UN reform, including expansion of the Security Council's membership. All those appeals proceeded from the premise that the rules and institutions created to address the economic, political, and security problems present after World War II were inadequate, and sometimes counterproductive, in the face of a new generation of threats to world order--to name but a few, AIDS and other new contagions, global warming, failed states, regional economic crises, sovereign bankruptcies, and the rise of global criminal networks trafficking in arms, money, women, workers, and drugs.
The mismatch between old rules and new threats is even more evident today. Two years after September 11, and one year after President Bush called on the Security Council to prove its strength and relevance in world affairs by enforcing a decade of resolutions against Saddam Hussein, the UN General Assembly convened this fall in a world that had changed radically yet again. Now both the United States and the UN are targets in a country and a region that seem to be spinning out of control. It's time to end the finger-pointing and get serious about generating new rules and updating old ones. Institutions, too, must be reinvigorated and reinvented. The UN Trusteeship Council, for example, could be used to spearhead the civilian rebuilding of countries devastated by war, disease, debt, and the despair of seemingly endless poverty.
The world needs international law. The United States needs the world. The dream of a just world under law may be no more than a dream. But the United States has never been stronger than when it has led the world in trying to make the dream a reality.
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Anne-Marie Slaughter is dean of the Woodrow Wilson School of Public and International Affairs at Princeton University and president of the American Society of International Law. She was formerly J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School.
Reprinted from Autumn 2003 Wilson Quarterly
This article may not be resold, reprinted, or redistributed for compensation of any kind without prior written permission from the author. For further reprint information, please contact Permissions, The Wilson Quarterly, One Woodrow Wilson Plaza, 1300 Pennsylvania Avenue, NW, Washington, D.C.
Phone:202/691-4200
E-mail:wq@wwic.si.edu
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Sometimes a Great Notion
by Michael J. Glennon
Related Articles
Green Fatigue by Stacy D. VanDeveer
The Two World Orders by Jed Rubenfeld
Leading Through Law by Anne-Marie Slaughter
Two Cheers for International Law by Oona A. Hathaway
Skepticism about international law abounds these days. A commentator in a national newsmagazine probably spoke for many when he wrote that international law is to law as professional wrestling is to wrestling: No one over the age of nine mistakes it for the real thing. International law has long had its critics, but in recent years they have seemed more numerous and included not only laypersons but specialists and diplomats. Meanwhile, its supporters express growing concern about its lack of clout. French president Jacques Chirac, for example, fears that the "law of the jungle" now prevails, and United Nations secretary general Kofi Annan has warned that we are "living through a crisis of the international system." In an extraordinary news conference on July 30, 2003, Annan wondered aloud "whether the institutions and methods we are accustomed to are really adequate to deal with all the stresses of the last couple of years." "What are the rules?" he asked.
Can it be that, 355 years after the Peace of Westphalia ended the Thirty Years' War and established the principle of the sovereign equality of nations, the "rules" of the international system are still in doubt? In fact, most of the rules are not in doubt, and for the most part the international legal system functions effectively, regulating air travel, telecommunications, and the like. The problem, rather, is that the two categories of rules that are in doubt--rules about rules, and rules regarding security--are vitally important.
Rules about rules--so-called metarules--are foundational and shape the content of every legal system. They specify what qualifies as a "rule"--how the rules that govern day-to-day conduct are made and unmade. The rest of a legal system depends for its vitality and coherence on the strength of its metarules, and three particular metarules of international law provide especially weak support. These rules relate to the issues of consent, obligation, and causation.
First, consent. It's commonly said that the international legal system is voluntarist, that is, that its rules are based on the consent of individual states. A state is not bound by any rule it does not accept. Thus, the system is grounded, ultimately, on self-restraint. Unless a state voluntarily restrains itself by consenting to be bound by a rule, it remains free to act in violation of the rule. This arrangement contrasts with the operation of domestic legal systems, which are based not on consent but on coercion. One can hardly decide that one will no longer be bound by the rule prohibiting bank robbery. A domestic legal system is voluntarist only in the sense that one can always leave it and relocate to a state with more congenial laws. In the international system, there's no overarching authority. All states have an equal right to accept or reject rules. It's sometimes claimed that this right of rejection exists only when a rule is first proposed, while it is in an inchoate state. But the whole logic of voluntarism undercuts this contention, for the notion of a consent-based system is meaningless if consent cannot be withdrawn in the same way it's given. States have not consented to the elimination of their consent.
But a system grounded on self-restraint creates serious problems--to the point of raising doubts as to whether it can accurately be described as "law." A leading international jurist, Judge Hersch Lauterpacht of the International Court of Justice, addressed the question in a narrower context in a 1957 case involving the validity of a state's acceptance of a treaty subject to an unusual reservation. The reservation in question would have rendered the treaty applicable only when the reserving state desired it to be applicable. In Judge Lauter?pacht's words, it would have left to the reserving state "the right to determine the extent and the very existence of its obligation," with the result that the state would have "undertaken an obligation to the extent to which it, and it alone, consider[ed] that it had done so." And this would have meant, the judge concluded, that the reserving state had "undertaken no obligation," for an "instrument in which a party is entitled to determine the existence of its obligation is not a valid and enforceable legal instrument." The treaty as modified would have lacked an "essential condition of validity of a legal instrument."
Judge Lauterpacht would no doubt be surprised to find that his logic in this one case could be extended to apply to the entire international legal system. But because the system is consent based, every state maintains the right to determine "the very existence of its obligation." The judge's reasoning suggests, therefore, that all international legal "obligations" undertaken by states are illusory because an "essential condition" of law is missing. Absent genuine obligation rather than mere self-restraint, it's hard to make the case that international law is really law.
U.S. domestic law rejects the notion that self-restraints are binding law. In constitutional law, a branch of the federal government cannot impose binding obligations on itself. For example, an executive order issued by President Gerald Ford, and still in effect, prohibits officials of the executive branch from engaging in assassination. Yet despite that executive order, President Bill Clinton ordered the assassination of Osama bin Laden. Though the earlier order had never been repealed, the later order simply superseded it. Self-restraints are not binding law.
This suggests a second systemic weakness of international law, deriving from the notion of obligation. The "glue that holds the system together," it's often said, is the rule that a state is bound to carry out treaties to which it is a party. But where does this rule to comply with treaties come from? In a consent-based system, from the states themselves. There's no alternative. So states can reject this rule just as they can reject any other rule. Yet if states can turn their backs on the rule that requires compliance with all rules, where does that leave the system?
Again, to respond that states may not withdraw their consent from the rule requiring compliance with treaties would be to reject the voluntarist foundation on which the whole system is based and to necessitate some alternative, transcendent source of obligation--"some brooding omnipresence in the sky," in the disparaging words of Oliver Wendell Holmes, Jr. Such an obligation would be moral, not legal, and its source would be unclear. Whether there exists a moral obligation to obey laws of human making is an important question--can a city council, for example, create a moral obligation to cross streets only in crosswalks?--but the question is moral, not legal.
The issue of obligation suggests a third systemic weakness, relating to causation. Inter?national law scholars have long been concerned about distinguishing what states do as a matter of legal obligation from what states do for other reasons--motivated, for example, by considerations of comity, courtesy, or simple self-interest. In assessing whether a given practice constitutes a norm of customary international law, therefore, international law has insisted upon some evidence that states have followed the practice in question because they have believed such conduct to be legally required. Traditional analysis, in other words, requires both a consistent state practice and a belief on the part of the state that the practice is obligatory as a matter of law. The belief must cause the conduct.
But the difficulty here is obvious. States, like individuals, seldom if ever act from a single intent. Conduct almost always flows from a tangled web of motives. Some international lawyers resolve this problem by assuming that if a rule exists and conduct consistent with the rule also exists, the rule must be the cause of the conduct. But such an inference is manifestly unjustified. If a city council adopted an ordinance requiring residents to brush their teeth daily, would it be accurate to ascribe the practice of daily toothbrushing to the new requirement imposed by law? In fact, it's often impossible to separate self-interested behavior from behavior caused by legal requirements.
The International Court of Justice took a new crack at this conundrum in Nicaragua v. U.S.A (1986). The case arose after the United States mined Nicaragua's harbors and otherwise provided support to the
so-called contras, who were attempting to overthrow the Nicaraguan government. In the course of rejecting arguments that the conduct of the United States was lawful, the court considered the status of the underlying rule. "If a State acts in a way prima facie incompatible with a recognized rule," the court said, "but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule." Unfortunately, the court's new approach is circular and self-referential. Some?times a breaching state may indeed agree with a rule that it violates. But again, there may be many reasons why a state appeals to "exceptions or justifications" contained within the rule other than an intent to confirm the rule. For example, the state may wholly object to a rule but appeal to an exception merely to avoid retribution. The assumption that the state's intent is necessarily to "confirm" the rule is arbitrary. If the state has engaged in a prima facie violation of a rule, it's more sensible to conclude that the state disagrees with the rule, not that it wants the rule strengthened.
These conceptual problems arise primarily in connection with customary international law, but they can also infect the application of treaty rules, for obligations imposed by treaties and customary international law often overlap. Consider once again the practice of assassination, which is commonly said to violate not only customary international law but also Article 2(4) of the UN Charter, prohibiting any use or threat of force against the territorial integrity or political independence of a state. States rarely engage in assassination, but what's the proper inference to draw from their behavior? That assassination is legally prohibited? It's possible that states forgo assassination for reasons related entirely to self-interest: Many may believe that the risks of retaliatory assassination are too great. The source of the rule may be treaty or custom, then, but it's impossible to know whether the behavior in question represents compliance or coincidental conformance with the rule.
So is everything up for grabs in the international legal world? Hardly. As Columbia University law professor Louis Henkin has famously observed, "It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." My point is simply that the international legal order is far more fragile than most domestic legal regimes because it rests on a foundation of problematic metarules. Most of the time, the system works well enough because most states derive greater benefit from honoring day-to-day rules than from breaching them. Issues concerning the metarules do not arise, and international life proceeds. States that deviate from expected patterns of practice face reprisals. Sometimes, the consequences of divergence take the form of immediate diplomatic, economic, or military sanctions, and sometimes they're reputational, with penalties long-term and indirect. Either way, violators suffer costs, even though those costs are imposed horizontally, at the hands of other actors within the system, rather than vertically, at the hands of some supranational authority.
Whether this is law, meaning a proper legal system, is, in many ways, beside the point. The real question is whether it works--whether the international legal system fulfills the functions that it's intended to serve. And here the record is decidedly mixed. Some rules work much better than others. As Georgetown University professor Anthony Arend has pointed out, legal rules have a stronger impact on state behavior in areas of "low politics" that "do not strike at the core security concerns of states"--international trade, communication, and transit--than they do in the realm of "high politics," where issues do touch on states' core security concerns. On issues of high politics, consensus is much harder to obtain, and legal regulation is correspondingly more difficult. Accordingly, states are more apt to rely on themselves than on international institutions, for often their very survival is at stake. The determinants of state behavior in the realm of high politics tend to be the cultural, historical, and power-related factors that affect states' calculations of their nerve-center security interests. In this realm, international rules are epiphenomenal, more effect than cause. So while it's important to know that most states observe most rules most of the time, it's equally important to realize that when some states violate some rules some of the time, those states are likely to be among the most powerful states, the rules are likely to be extraordinarily significant rules, and violations are likely to be highly visible and historically significant. Hence, the recent burst of skepticism about international law.
By their very effectiveness, the enormous body of international legal rules governing the quotidian dealings of states and nonstate actors--rules affecting such matters as finance and trade--have spun an increasingly tight web of interdependence and made globalization possible. But the fact that planes land, packages are delivered, and phone calls go through does not mean that the international legal order is operating as it should. The risks flowing from the failure of security rules are not lessened because many less important rules work. Though rules governing the use of force constitute only a small part of the international regulatory scheme, their dramatic collapse has overshadowed international law's many small successes--and understandably so, for the stakes could hardly be greater. Until international law does a better job of tackling the large issues, doubts about it will persist.
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Michael J. Glennon, a professor of international law at the Fletcher School of Law and Diplomacy at Tufts University and a former Wilson Center fellow, is the author of Limits of Law, Prerogatives of Power: Interventionism after Kosovo (2001).
Reprinted from Autumn 2003 Wilson Quarterly
This article may not be resold, reprinted, or redistributed for compensation of any kind without prior written permission from the author. For further reprint information, please contact Permissions, The Wilson Quarterly, One Woodrow Wilson Plaza, 1300 Pennsylvania Avenue, NW, Washington, D.C.
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Two Cheers for International Law
by Oona A. Hathaway
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In March of this year, as U.S. tanks began to roll toward Baghdad, international lawyers in the United States and abroad decried the action as a violation of the United Nations Charter. The invasion, some worried, would strip away the last pretense that international law could constrain state action. Today, as we face an increasingly conflict-ridden post-September 11 world, questions linger about the place of international law in maintaining international order. When states so openly flout it, is international law worth having?
Even before the invasion of Iraq, events had given pause to all but the staunchest defenders of international law. Near the end of the Clinton administration, for example, Senator Jesse Helms (R.-N.C.), chairman of the Senate Foreign Relations Committee, bluntly declared before the UN Security Council that if the United Nations were to seek to impose its power and authority over nation states, it would "meet stiff resistance from the American people." The administration of George W. Bush, which came to power almost exactly one year later, immediately made clear that it shared Helms's disdain for international law. Within his first six months in office, President Bush withdrew from the Kyoto global climate accord, threatened to abrogate unilaterally the 1972 Anti-Ballistic Missile Treaty, and revoked the signature of the United States on the treaty creating the International Criminal Court.
But not all the blame for today's state of crisis in international law can be laid in Bush's lap. The issue of the role of international law in regulating international relations has bedeviled the world community for decades. After World War II, even as the world pressed ahead with the UN and other new international institutions, widespread dismay over the failure of earlier institutions to prevent the collapse of order prompted a wave of attacks on the Wilsonian ideal of an international system founded on global legal order. As long as there was no sovereign power to manage enforcement, critics argued, international law was meaningless. To regard it as anything else was not just unrealistic but dangerous.
And yet, these deep-seated doubts have done nothing to stem the growth of such laws. More than 50,000 international treaties are in force today, covering nearly every aspect of international relations and nearly every facet of state authority. The treaties range from ambitious multiparty agreements to narrow bilateral pacts. This great edifice is now under siege, yet those who built it have done little to explain or defend it to the public at large. Their inaction has allowed those who are skeptical of international law (and tend to know little about it) to fill the vacuum in the public debate. Little surprise, then, that the Bush administration has faced only a whimper of challenge to its policy of malign neglect.
The failure to mount a persuasive defense of international law has its roots in the universities, where so many of the ideas that inform public debate are incubated. With a few notable exceptions, legal scholars have remained largely above the fray. Instead of addressing critics, they have focused most of their attention on interpreting and creating international legal rules--and simply assumed that states will observe the rules. At the same time, an intellectual chasm has opened between students of law and students of politics: Legal scholars, for the most part, have ignored many questions about the role of political power, while political scientists, who think of power first and foremost, have tended to ignore international law. That division has prevented the emergence of a fuller view of the role of international law in the world.
But the chasm is closing. A new vein of scholarship, which takes international law seriously while examining it critically, confirms neither the greatest hopes of international law's advocates nor the greatest fears of its opponents. Consider a controversial study in the Journal of Public Economics (Feb. 1997) by James Murdoch and Todd Sandler. It suggests that the 1987 Montreal Protocol on Substances That Deplete the Ozone-Layer, often hailed as one of the most successful international agreements of modern times, had virtually no independent impact on countries' use of ozone-depleting gases. The authors argue that the treaty merely codified an existing trend of voluntary cutbacks in emissions. But a more recent study by Beth Simmons in the American Political Science Review (Dec. 2000) indicates that rules in the International Monetary Fund's Articles of Agreement governing the financial policies of national governments have indeed been effective in influencing behavior. It's not just IMF pressure that does the job, Simmons found, but the desire of individual countries to establish their credibility in world markets.
My own recent research on human rights treaties suggests that they have effects fairly different from what either friends or foes of international law would expect. Countries that sign and ratify human rights treaties turn out to have better human rights practices than those that fail to ratify. Yet the difference is not very large. And some of the countries that have joined human rights treaties have worse human rights practices than those that have not joined. For example, the countries that have ratified the 1987 Convention against Torture have torture practices that are, on average, nearly impossible to distinguish from those of countries that haven't ratified the convention. Among the ratifiers are states--including Algeria, China, Colombia, Mexico, Peru, and Turkey--whose horrific abuses of their own citizens have been documented by the U.S. government and human rights organizations. Even more striking, states that have ratified regional conventions prohibiting torture, such as the Inter-American Convention to Prevent and Punish Torture, have worse practices on average than those that have not.
The facts may be bad news for those who see human rights treaties as an instant elixir, but they also confound the predictions of critics, who see the treaties as mere window-dressing. States do not agree only to treaties that require them to do what they're already doing, as critics contend. They actually join treaties that commit them to do something more.
My research also indicates that human rights treaties do not always have the effect their proponents intend. For example, while states with better practices are, on the whole, more likely to join human rights treaties than those with worse practices, only the most democratic states appear to improve their practices after ratifying human rights treaties. Signing a treaty is no guarantee that a country will make improvements. Egypt, Cameroon, and Mexico were among the earliest to ratify the Convention against Torture, yet they continued to have some of the worst torture practices well into the 1990s. Among states with otherwise similar economic and political characteristics, some that ratify human rights accords actually indulge in worse practices than those that don't ratify them. And some of the most brutal episodes of mass killing since World War II--the massacres in Cambodia, Rwanda, and Yugo?slavia--occurred in countries that had ratified the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
Understanding how international law works in the real world requires a reorientation of our thinking. The critics are undoubtedly right about at least one thing: International law is nothing like domestic law. Unlike effective domestic law, it lacks a sovereign with the power to enforce it. The closest thing to an international sovereign is the UN, and it has virtually none of the powers necessary for effective governance, most notably the power of enforcement (for which it must depend on member states). Fur?ther, international law is largely voluntary; states are, for the most part, not bound by it unless they accede to it. If the same were true in domestic law, we all could decide for ourselves whether the nation's criminal laws applied to us. Needless to say, the laws would work much less well if that were so.
Whether states will actually abide by international legal commitments once they are made is, of course, another issue altogether. Law that is not enforced will not be obeyed. That seems obvious. But a closer look suggests that the assertion is questionable. If enforcement were the only reason people followed the law, the world would be a much messier place. I refrain from taking property that does not belong to me not solely because I fear punishment by the state. I abide by the law for a complex mix of reasons, including--besides fear of enforcement by the state--my moral beliefs, internalization of the legal rule, fear of retribution by the wronged party, and concern for my reputation if others learn of my wrongdoing. Even if I know there's no chance the state will punish me, there are many reasons why I'm likely to abide by the law.
Countries, too, observe the law for multiple reasons, and fear of enforcement is unquestionably among the more important of them; international legal rules that incorporate penalties for violations are more likely to be followed. But states, like individuals, observe rules for many other reasons as well. Because central enforcement of international agreements is rare, parties to international legal agreements often enforce the agreements themselves. Indeed, many trade and arms control agreements are effectively enforced by the threat of tit-for-tat retaliation. States may also face internal political or legal pressure to adhere to international law. Especially in democratic nations, people outside government can use litigation, media exposure, and political challenges to compel governments to abide by their legal commitments. Such pressure is a key reason why states abide by their commitments under human rights treaties.
Concern for reputation is an additional powerful motivation for states to keep their international legal commitments. If violations are likely to be discovered (as is often true, for example, with violations of international trade laws), states will be disposed to follow international rules in order to foster a good impression among other members of the international community. By making themselves look good, they may hope to attract more foreign investment, aid donations, international trade, and other tangible benefits. They may also accept limits on their own actions to obtain similar limits on the actions of others. Thus, they may limit the tariffs they charge on imports, for example, to obtain a reciprocal easing of access to the markets of other states. But when violations of international commitments are difficult to detect--such as occurs with the dumping of toxic waste, excessive air pollution, or police abuse of suspects--violations are likely to be more common. And last but not least, let's not forget that government leaders may even be led, on occasion, by their own moral judgment to abide by international legal rules.
International law, in other words, is neither as weak as its detractors suggest nor as strong as its advocates claim. The events of the past year have made it painfully evident that international law is not the panacea some might hope it to be. Yet it remains a powerful tool for creating international order in a world that desperately needs it. The challenge now is to move beyond bitter and unproductive all-or-nothing debates over the effectiveness of international law and find ways of harnessing its real but limited power to change the world for the better.
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Oona A. Hathaway is an associate professor of law at Yale Law School. She is writing a book on the sources and effects of international law, and is co-authoring a volume with Harold Hongju Koh on the foundations of international law and politics.
Reprinted from Autumn 2003 Wilson Quarterly
This article may not be resold, reprinted, or redistributed for compensation of any kind without prior written permission from the author. For further reprint information, please contact Permissions, The Wilson Quarterly, One Woodrow Wilson Plaza, 1300 Pennsylvania Avenue, NW, Washington, D.C.
Phone:202/691-4200
E-mail:wq@wwic.si.edu
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