Finding International Law: Rethinking the Doctrine of Sources

• Author: Harlan Grant Cohen
• Position: Assistant Professor, University of Georgia School of Law; J.D., New York University School of Law, 2003; M.A. History, Y
• Pages: 67-129

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Harlan Grant Cohen: I am indebted to my mentors, colleagues, and friends who have taken the time to discuss the ideas presented here, read various drafts, and provide insightful advice. Thank you to Benedict Kingsbury, Barry Friedman, Rachel Barkow, David Golove, Dan Bodansky, Mattias Kumm, Florencia Marotta-Wurgler, Maggie Lemos, Troy McKenzie, Daniel Reich, Andrew Rosen, Adina Rosenbaum, Anthony Colangelo, and the Furman Scholars for their invaluable help. Thank you also to Andrew J. Whealy and the staff of the Iowa Law Review for their work editing this Article and preparing it for publication. Most of all, thank you to Shirlee Tevet Cohen, who has read this Article so many times that she can probably recite it backwards.

Introduction

International law is plagued by two deeply held, apparently incompatible intuitions. The first, to which international law skeptics often appeal, is that international laws are regularly broken. This intuition seems to be supported by a long list of well-known, high-profile treaty violations. Both the U.S.-led invasion of Iraq and NATO intervention in Kosovo proceeded without the Security Council authorization required by the U.N. Charter. Prisoners captured by the United States in Iraq and Afghanistan (as well as elsewhere) have suffered abuse despite clear treaties prohibiting their mistreatment. And most of all, states like Sudan, Saudi Arabia, Uzbekistan, and Zimbabwe continue to violate the human and civil rights of their citizens in direct contravention of the human rights treaties they have signed. International law skeptics see these violations as proof of international law's relative inefficacy.¹ In their view, international law exerts little independent influence over state action.² For some, the patterns of noncompliance are proof that international law is "law" in name only.

Recent empirical work also seems to support this intuition. Skeptics of international law point to studies that seem to show little or no correlation between signing human rights treaties and better human rights practices.³One recent study seems to go even further, presenting empirical evidence that those states most likely to ratify human rights or environmental treaties may also be those least likely to follow them. According to this study, states with strong commitments to human rights and strong internal actors (e.g., courts and NGOs) may be less likely to ratify a treaty-even if it requires actions the state already follows-because it is far more likely that those actors will require the state to comply. At the same time, states with weak internal actors may ratify those treaties because they are unlikely to be held to their provisions after receiving the initial public-relations benefit of ratification.⁴ Such findings, which drives a wedge between the rules identified as international law and the actual practice of states, provide powerful fodder for those who believe that international law is meaningless.

Yet this first intuition somehow coexists with a second, equally powerful intuition that "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time."⁵ Page 68

Louis Henkin's famous statement is repeated almost as a mantra by many international law scholars,⁶ and it clearly drives their work.⁷ Proponents of this view downplay the high-profile violations cited by international law skeptics. Those violations are the exception rather than the rule; regular compliance with the rules-wars not fought, rights not violated-is simply harder to observe. Moreover, where the skeptics see proof that international law is mere illusion, international law optimists see compliance problems that can be understood and fixed.

These international law optimists instead point to the growing network of trade and investment treaties and the myriad humdrum ways international law regulates modern global life. A list of "International Law: 100 Ways It Shapes Our Lives," prepared by the American Society of International Law for its 100th anniversary, demonstrates this ethos. The items included on the list demonstrate how ordinary compliance with international law has become. The list includes "[a]lways knowing what the date and time is anywhere on the planet," "[m]ailing a letter reliably and easily to anyone in the world," "[d]riving freely and legally in another country," "[p]reventing your income, should you earn any in a foreign country, from being taxed twice," and "[e]nforcing an arbitral award without Page 69 a local court having to hear the dispute anew."⁸ All of these result from the regularized operation of international agreements.⁹

International actors and international law scholars have often chosen sides in this debate, preferring one intuition over the other. Proponents of the Bush Doctrine and its unilateralism find support in the first intuition; advocates of the International Criminal Court take solace in the second. Tension between these two intuitions remains a powerful driving force behind international law and practice. In general, however, the two sides end up arguing past each other, and battles between the two intuitions and their proponents end in stalemate-neither side is able to convince the other to abandon its deeply held beliefs.

This Article suggests a way to reconcile these two intuitions, a way to conceive of international law that takes both intuitions seriously. There are a few ways one could conceptualize the gaps between the dictates of treaties and actual state practice. One way would be to accept that treaties are international law but recognize that some of those laws are often violated. A second way would be to suggest that there is no such thing as international law and that widespread violation proves the point. Finally, a third way would question our method for identifying international law-in other words, it would suggest that there is international law, but treaties are not necessarily it. This Article takes the third approach and suggests a revision, or at least rethinking, of the traditional doctrine of sources. Rather than treat the apparent gaps between treaties and compliance as evidence of international law's inefficacy or as proof that international law is a myth, this Article argues for a rethinking of what the rules of international law actually are.

In searching for a rule of international law, sources have traditionally been arranged in a rough hierarchy of: (1) treaties, (2) custom, and (3) general principles of law and equity. Treaties are generally treated as the best and strongest source of international law rules. To a certain extent, treaties and international law are often treated as one and the same. Custom and general principles act as sources of international law in the absence of a treaty. This hierarchy emphasizes a positivist concern with state consent over the internalization of norms. It prefers the formality and definition of treaties over less tangible sources of law.

But what if treaties are not, in and of themselves, the law? This Article argues that the traditional doctrine of sources-with its focus on consent and formality and its idolization of treaties-is outdated and needs to be revised. The doctrine was designed to describe a late-nineteenth-century Page 70 world. Its hierarchy of treaties, custom, and general principles did a reasonable job of identifying the rules treated as law in an international system made up of few states and in which treaties reflected attempts at state coordination. But changes in the international system since that time-the rapid inclusion of new states into the system, the rise of human rights, the creation of international and transnational bodies, and the resultant changes in the nature and subject-matter of treaties-have put great strain on the doctrine. Largely unchanged, the doctrine has struggled to identify and categorize modern international phenomena. The result, this Article argues, is a disconnect between the rules identified as law by the doctrine of sources and the rules actually treated as law by the actors in the international system. Our warring intuitions about international law are just one manifestation of the confusion this disconnect produces.

This Article seeks to bridge this divide, to realign our method for identifying the rules considered international "law," namely the doctrine of sources, with the rules actually treated as law by international actors. To do so, this Article seeks guidance from a different and currently vibrant area of international legal theory: recent explanations of when and why states comply with international law.¹⁰ Whereas the doctrine of sources...