Think Again

Think Again: International Law

Governments respect international law only when it suits their national interests. Don't expect that to change any time soon.


"Obama Will Respect International Law More Than Bush Did."

No. George W. Bush did not brush aside international law as casually as his critics claimed, and President Barack Obama's approach is likely to be surprisingly similar. The United States -- under the leadership of both the Republican and Democratic parties -- has taken a fairly consistent approach to international law over the decades, one that involves building legal regimes that serve U.S. interests and tearing down those that do not.

"Obama Will Respect International Law More Than Bush Did."

No. George W. Bush did not brush aside international law as casually as his critics claimed, and President Barack Obama’s approach is likely to be surprisingly similar. The United States — under the leadership of both the Republican and Democratic parties — has taken a fairly consistent approach to international law over the decades, one that involves building legal regimes that serve U.S. interests and tearing down those that do not.

The bill of particulars against Bush seems long. He withdrew the Unites States from the Anti-Ballistic Missile (ABM) Treaty with Russia; "unsigned" the Rome Statute that created the International Criminal Court (ICC); invaded Iraq in violation of the U.N. Charter; authorized war-on-terror tactics in tension with human rights treaties and the Geneva Conventions; dragged his feet on a climate treaty; imposed a tariff on steel in violation of international trade law; stood by while a genocide took place in Sudan; and refused to sign a host of new and old treaties aimed at promoting human rights and limiting violence in war.

But there is less here than meets the eye. Bush acted within the law by withdrawing from the ABM treaty (which permitted withdrawal upon six months notice, a requirement he observed), and he had no obligation to maintain the U.S. signature on the Rome Statute (which lacked support from both political parties in the United States). Nonetheless, Bush provided valuable support to the ICC by agreeing to allow it to investigate crimes in Sudan. The invasion of Iraq did violate the U.N. Charter, but it also removed one of the world’s worst international lawbreakers and vindicated the U.N. sanctions regime that Iraq had disregarded.

There was little political support for a climate treaty until the end of the Bush administration. When that support finally materialized, Bush signaled that he would go forward with such a treaty. In similar ways, Bush’s war-on-terror tactics moderated over time, as the threat diminished. Bush had no obligation to intervene in Sudan — indeed, an intervention without Security Council authorization, which would certainly have been blocked by China, would have been unlawful. Nor did he have an obligation to sign other human rights and law-of-war treaties that he disapproved of.

During his presidential campaign, Obama expressed support for the International Criminal Court and humanitarian intervention. In office, he has done nothing for the ICC and has stood by while the killing continues in Sudan. He has promised to close the detention facility at Guantánamo Bay; the problem, however, was not that the facility itself violated international law but that the detention methods practiced there (arguably) did so. These very same detention practices have continued in Iraq and Afghanistan.

Meanwhile, Obama has sought to give immunity to Bush-era interrogators — another possible violation of international law, and certainly in tension with it. Bush’s unlawful tariffs on steel are matched by the "buy American" provision in the stimulus bill signed by Obama and the tariffs that he has slapped on Chinese tires. Obama has provided some symbolic support for international law in a few ways, but where it counts — obtaining Senate ratification of the Law of the Sea treaty (which Bush also supported) and numerous international human rights treaties — he has expended no political capital. Don’t expect this to change.

"If International Law Were Stronger, the World Would Be Safer."

Not necessarily. International law is only as strong as the states with an interest in upholding it. Ambitious schemes that seek to transcend countries’ interests routinely fail. The 1928 Kellogg-Briand Pact outlawed war shortly before the worst war in world history. The League of Nations was bypassed and ignored. The United Nations has never lived up to its ambitions and has only proved effective for narrow projects after expectations were scaled down to a realistic level. The greatest achievement of international law — the modern trade system institutionalized in the World Trade Organization — depends for its vitality on the good faith of a handful of great powers relying on weak self-help remedies.

The challenge for governments is finding areas of international cooperation where interests converge enough that states are able to overcome mutual suspicion and commit themselves to complying with their obligations. Real problems, such as climate change, must await propitious international political conditions, which will often take longer than good policy and science indicate is optimal. Promoting international law for its own sake, in the hope that eventually countries will go along, has never been successful.

"International Law Is the Best Way to Protect Human Rights."

Wishful thinking. Academic research suggests that international human rights treaties have had little or no impact on the actual practices of states. The Genocide Convention has not prevented genocides; the Torture Convention has not stopped torture. The same can be said for the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and a host of treaties meant to advance the rights of women and children. States that already respect human rights join human rights treaties because doing so is costless for them. States that do not respect human rights simply ignore their treaty obligations.

The evidence shows that human rights are best in those states that are wealthiest, leading many scholars to speculate that the best way to promote human rights is to promote growth. This can be done through liberal trade and immigration policies, and perhaps (though this is controversial) carefully targeted aid that is conditioned on institutional reform. One simple step, unlikely to be taken, would be for Europe and the United States to eliminate domestic agricultural subsidies that reduce demand for agricultural exports from poor countries.

"Europeans Care More About International Law Than Americans Do."

Not really. This shibboleth reflects a number of mistakes. Because European integration rests on a series of highly successful treaties, many casual observers see Europeans as pro-international law. And when seeking international approval of new treaties they propose, Europeans themselves cite their experience as evidence that international law works. But unification of countries is not a new phenomenon — the United States is the result of union as well — and has little to do with the type of international law at issue in current debates, the kind of international law that involves all states around the world.

It’s true that Europeans have been successful in recent years in placing many of their major concerns, such as human rights and climate change, on the international legal agenda. But the United States and other countries have also promoted treaties that they care about, especially on counterterrorism. Finally, Europe’s foreign-policy agenda is more liberal than that of the United States, leading European countries to advance treaties with more liberal aims than those the United States has. These treaties — again, those on human rights and climate change lead the list — have received a great deal of attention in the United States among critics of U.S. foreign policy for that reason only. This has nothing to do with Europe’s allegedly greater support of international law; it just reflects policy differences.

Meanwhile, Europeans have played hardball when it has suited them. On international trade, the European Union has taken positions in a range of disputes involving genetically modified organisms, beef hormones, and bananas that have placed it in violation of international trade law or nearly so. Most EU countries are on track to violate their commitments under the Kyoto Protocol. European enthusiasm for the ICC remains high, but major European countries — unlike the United States — have been reluctant to give the ICC free rein in Sudan. Just last year, the European Court of Justice told EU members that they must disregard an order issued by the Security Council because it violated European law. Disregarding an order by the Security Council violates the U.N. Charter, of course. The 1999 NATO military intervention in Kosovo also violated international law — the Security Council did not approve it — yet it had the enthusiastic participation of all the full European members of NATO, plus France. (And don’t forget the 16 European countries that joined the United States in supporting military intervention in Iraq.)

Europeans, like Americans, use international law as an instrument to advance their interests. Where U.S. and European interests diverge, the countries act differently with respect to international law — complying with, and promoting, those portions of it that advance their interest, while violating or applying narrow interpretations to those that don’t.

"International Law Is a Worthy Goal."

Not at all. Some might argue that even if international law is not currently effective, improving it is nonetheless a worthwhile aspiration for the international community. But international law should be looked at as a worthy means, not an end in itself. In some circumstances, it can be useful to build international cooperation on key issues. But the view that international law is an end in itself — which I have dubbed "global legalism" — is based on a false picture of international relations and can lead to wasted time and effort devoted to constructing legal institutions that won’t work. Although many academics are global legalists, state leaders, of all ideological persuasions, are not.

The Nuremberg trials — ironically one of the sources of global legalism — were thought necessary for punishing the Nazis and were surely justified, but they also violated international law, which at that time did not hold leaders criminally responsible for launching invasions of other countries or even for crimes against humanity. The illegal military intervention in Kosovo stopped ethnic cleansing and, for a time, the wars that racked the Balkans. Not all violations of international law are good, of course. But the tendency of global legalists to treat international law as a talisman, more often than not, interferes with the kinds of international cooperation that actually advance the global good.

Eric A. Posner, the Kirkland and Ellis professor of law at the University of Chicago, is the author of the recently published book, The Perils of Global Legalism.

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