For a Forrest Gump Approach to International Law
Is Europe’s commitment to international law largely rhetorical? Yes, write HLS Professor Jack Goldsmith and University of Chicago Law Professor Eric Posner ’91. Wrong, writes LL.M. student Matthias C. Kettemann, who calls for a Forrest Gump Approach to International Law.
Matthias C. Kettemann
Forest Gump’s mother famously said that life was like a box of chocolates: “You never know what you’re gonna get.” The same holds true for international law. Taking the box of chocolate und accepting “what you’re gonna get”, independent of whether you like the particular praline is what international law is all about. Since the famous Peace of Westphalia of 1648, which brought along the emergence of today’s international legal system, states have taken the box and eaten the bitter chocolate (for the not-so-much metaphorically inclined: accepted their obligations and changed their behaviour accordingly) and the nougat (enjoyed the international legal rules that reaffirmed their interests).
The came along Jack Goldsmith and Eric Posner ’91. In 2005, the HLS Professor and the University of Chicago Law Professor published “The Limits of International Law” which argued vehemently for what could be termed a “nougat only approach” to international law. In essence, they posited that international law has no intrinsic compliance pull. States conform with international law, they argued, if it furthers their interest and do not, if it fails to.
The limits of international law
Unlike former US Ambassador to the UN, John R. Bolton (and more influential thinkers before him, such as Thomas Hobbes), who questioned the very existence of international law, Goldsmith and Posner, relying on rational choice theory, argued that international law does not act as an external constraint on state behaviour. “The Limits of International Law” was widely read and critically received. Some of the critics, such as international law and economics expert Anne van Aaken (St. Gallen), rightly pointed out that there were limits to the “Limits” book, as the authors only took into account the interests of states to conform their behaviour to international law at one – arbitrary – point in time. Indeed, Goldsmith and Posner ignored the possibility (and, I would argue, likelihood) that states have a non-instrumental interest in behaving in conformity with rules so as to stabilize the system. Of course, in keeping with an state interest-focused “nougat” approach to international law, it could be countered that in so doing they are actually, again, acting in sync with their interests, only this time their long-term ones.
But a stronger point to make is that based on an ex ante assumption that international rules are legitimate, rational states will accept the obligatory nature of international legal rules as rules, since, by so doing, they can achieve advantages (world peace, international security, maximization of their reputation) in the long run. In what Professors Norman and Trachtman called a “Customary International Law Game”, states sometimes choose to disobey a rule, but rarely question the rule’s legitimacy as such.
To better understand this point, think of a common thief. He will break the rule against violating another person’s property on an individual basis, but does not doubt the existence of the more general rule providing for the protection of property. Indeed, because – by acting illegally – he acquires property in a very risky manner, he implicitly trusts the state’s legal system to protect his (illegally and riskily obtained) property. Even thieves hate thieves. Similarly, in international law, it is often the rogue states that, while breaking international legal rules on an individual basis, believe (and sometimes misuse) the international legal system in toto. Think of Iraq, consider North Korea, and look at Iran. Just as the thief’s breaking of the law against stealing does not invalidate it (or undermines the state’s legal system), the choice by a state to ignore an international rule or to question its validity might in fact contribute to increasing its obligatory power – by making others states voice their opposition to the violation and thereby stabilizing the rule which was broken. The big difference between theft and the violation of international legal norms by rogue states is that while we see the consequences of the former on “Cops”, we have to wait for some years to see the outcomes of the latter – as “Breaking News” on CNN.
Does Europe believe in international law?
In a November 2008 editorial in the Wall Street Journal http://www.law.harvard.edu/news/2008/11/25_goldsmith.posner.html), Goldsmith and Posner apply their theory on the limits of international law to Europe. They write that “[l]ike the Bush administration, Europeans obey international law when it advances their interests and discard it when it does not.” In essence, they argue that even Europe, which professes to be international law-friendly, does not really believe in the binding nature of international law.
In order to drive their point home, they bring a number of examples, which I will address in turn.
First, they consider the case of Yassin Abdullah Kadi and the al Barakaat International Foundation. Kadi’s assets were frozen according to a UN Security Council Resolution against terrorism financing which was then implemented by an EU regulation. Goldsmith and Posner write that the “the European Court of Justice ruled that the Security Council resolution was invalid.” They are wrong. In its, admittedly imperfect and partly off-hand 2008 judgment the ECJ merely ruled that the regulation implementing the Security Council resolution was invalid because it violated Kadi’s fundamental rights. The ECJ noted that the protection of fundamental rights must be “considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement.” This does not mean that the ECJ would ignore international law – on the contrary. The protection of fundamental rights is deeply rooted in international law. By referring to a “constitutional guarantee”, the ECJ likens its role to that of a Constitutional Court ensuring that all acts passed by the organs it oversees respect fundamental rights. There is nothing wrong with that.
Goldsmith and Posner interpret the decision as meaning that “European countries must disregard the U.N. Charter … when it conflicts with European constitutional order.” Again, they are wrong. The Court merely pointed out that any EU regulation implementing a UN Security Resolution must meet minimum human right standards. By reforming the Sanctions Committee, established to oversee these resolutions, the UN has in fact taken up some aspects of the ruling to render the system more accountable.
Another example that Goldsmith and Posner bring for the allegedly self-interest-focused approach to international law of Europe is the 1999 NATO intervention in Kosovo. “European nations”, they write, “participated in NATO’s bombing of Kosovo without Security Council authorization.” This is true, but as a Commission that looked into the intervention later concluded, their action was at least legitimate. Further, the intervention served to stop bloodshed and massive human rights violations in Kosovo and thus served one of the most important goals of the international legal order: protecting individuals. Also, the Kosovo case was seen as the first important example of so-called humanitarian interventions. Rather than ignoring international law and enforcing their own interests, the intervention thus served to confirm the underlying principles of international law and contributed mightily to its development towards the acknowledgement of a right of humanitarian interventions. The evolution of the “responsib
ility to protect” has also been influenced by the Kosovo intervention.
Errors have been made – and corrected
I have to concede to Goldsmith and Posner that the European approach to trade disputes in the framework of the WTO has not been exemplary. But very often, especially with two of the issues they mention – “resisting importation of genetically modified foods, or beef from cattle raised with growth hormones” – the Europeans follow an international legal concept, namely the precautionary principle, in opposing imports. It is true that European countries did not implement adverse WTO rulings in these cases, but as legal history in both the US and the EU aptly shows the non-implementation of certain rulings, in exceptional cases, does not serve as evidence of a comprehensive failure of the system. International economic law has been a huge success story, but only the few, well publicized disputes make the headlines.
It is also true that some European countries have cooperated with the US with regard to extraordinary renditions, but this attitude has changed. As a number of cases before UN bodies, including the Committee against Torture and the Human Rights Committee overseeing the International Covenant on Civil and Political Rights show, mistakes have been made and international has been violated. But, and I repeat myself, this does not help Goldsmith and Posner in showing that European states do not believe in the binding nature of international law or ignore it whenever they feel like it.
The importance of values
Goldsmith and Posner mention other examples, including European states’ sometimes wavering support for the ICC, and follow this up with the conclusion that “Europeans hold their values and interests dear, just as Americans do, and will not subordinate them to the requirements of international law.” Yes, Europeans hold their values and interest dear, just as Americans do – and that is what they should. But these values are influenced and honed by international law and international law, conversely, serves to express and implement these values. There is no relationship of subordination. Rather, international law, like every legal system, is a value system based on intricate power equilibria and sometimes mutually contradictory goals. The international legal system is more complex than any national system, even though – or because – it has much fewer actors. That on the international legal plane values clash, bad choices are made, rules are broken and judgments remain non-implemented cannot be doubted. But this is also the situation in every national legal system and cannot be used to cast a shadow of doubt over the clear evidence that states consider international law to be just that: law.
The end of the Cold War did brought what the Finnish international legal theorist Martti Koskenniemi termed, an “enthusiastic revival” of international law. New actors emerged, new laws were made, new hopes voiced. Within the last twenty years, the system of international was greatly energized, and the United States were an important contributor to and shaper of international legal norms, which reflected, inter alia, American values. Therefore, it is incongruous to argue, as do Goldsmith and Posner, that international law reflects only the interest of powerful states and is therefore not “good” as such.
Just like a box of chocolates
I would question this presumption, as there is simply no reason for a prima facie assumption that a system reflecting the interests of powerful states is bad. This bears out especially in light of the renewed commitment, by the Obama administration, to international law as the prime tool to engage other states and to find peaceful and sustainable solutions to international conflicts. Further, with the notable exception of historically explainable, but outdated institutional rules, such as the membership and decision-making structure of the Security Council, international law, just as any legal system, has a strong immune system and phases out – through state practice – rules which do not conform to the aspirations of the majority of states. Again, it is like a box of chocolates. Intrinsically good, but with some bitter pieces.
To continue in this line of thought (and yes, I am hungry by now), Hugo Grotius, often described as the “father of international law”, wrote that there lies in each person an “appetitus societatis”, an appetite, or desire, to live peacefully in an ordered society, structured by binding rules of a general nature and applicability. I see no reason why states should not also have this “appetite”. In fact, I would argue, they do. International law needs to be binding, it is binding, and states accept it as binding – Goldsmith and Posner’s arguments notwithstanding.
More than forty years ago, Louis Henkin formulated in How Nations Behave, “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.” While not wrong, he was imprecise: It is not only “probably” the case, but evidence has shown that his statement is unequivocally true.
States follow the Forrest Gump Approach to International Law, eating the sweet and the bitter pralines, enjoying their rights and respecting almost all of their obligations almost all of the times, even if they contradict state interest in the short run. They do so, because they know that the international legal system reflects their values and will, in the long run, ensure their realization with more effectivity and sensibility to human rights than any national enforcement could possible ensure.
Matthias C. Kettemann is an LL.M. student from Austria.