Do states have a moral obligation to obey international law?

• Author: Posner, Eric A.
• Position: Symposium on Treaties, Enforcement, and U.S. Sovereignty

INTRODUCTION

In 1960 Israeli agents kidnapped Adolf Eichmann from Argentine territory. This violation of international law sparked protests from all quarters. Israel, having accomplished its goal, apologized to Argentina, which had no great desire to draw attention to its colony of former Nazis and accepted the apology. (1) The world turned its eyes to Eichmann's trial, and the incident was forgotten.

Should Israel have refrained from kidnapping Eichmann because this act was a violation of international law? There are two ways to answer this question. The first assumes that the only reason to comply with international law is to avoid retaliation from other nations or to avoid their distrust. Kidnapping Eichmann would have been wrong if other states had retaliated against Israel or had concluded from its actions that Israel could not be trusted to comply with the treaties that it has signed. If these are the only costs of violating international law, then criticizing Israel for kidnapping Eichmann amounts to a prudential claim that Israel did not properly calculate the costs and benefits of its behavior. In this argument, there is nothing special about law: Violating the law is morally neutral, like deciding to raise tariffs against Argentine imports in order to protect a domestic industry even though doing so will hurt Argentine industry and invite a punitive response.

The second possible answer to the question is that Israel should have refrained from kidnapping Eichmann because it is wrong to violate international law. The wrongfulness of violating the law is distinct from the wrongfulness, if any, of kidnapping Eichmann. One might believe that it would have been morally permissible for Israel to kidnap Eichmann if international law had not forbidden this behavior, just as one might believe that it is morally permissible to build a house on a seashore but would be wrong to do so if a law forbade construction on the seashore. Criticizing Israel for kidnapping Eichmann is a moral argument, not a prudential argument; and if one thinks that Israel has a moral right to kidnap Eichmann, then the critique is based on the conviction that Israel has a moral obligation to comply with international law.

On the first view, international law is a source of expectations about how states will act under various conditions. If an international law forbids behavior X, then states might retaliate against someone who engages in X. But whether they do so or not depends on their own interests and capacities. Each state makes a cost-benefit decision, albeit a sophisticated one that takes account of the reputational consequences of that decision, and it makes such a decision both when deciding whether to comply with an international law and whether to retaliate against another state that violates international law. On the second view, international law is a source of moral obligations that influence states by constraining their prudential decisions. In the Eichmann case, the likelihood that Argentina would be too embarrassed to raise forceful objections to Israel's violation of international law, and that other nations would have no strong interest in keeping Eichmann in Argentina, are legitimate considerations under the prudential view but not the moral view. Under this view it is wrong to break the law even when one can escape sanctions.

This Article argues that states do not have a general moral obligation to comply with international law. The Article assumes for the sake of argument that states can have moral obligations, (2) for if they could not, a fortiori they could not have a moral obligation to obey international law. But if states have moral obligations, there is a further question whether citizens and leaders inherit the state's moral obligations (all or some of them). I will address that question in Part I. Part II discusses whether states have a moral obligation to keep their promises. Part III addresses the main question, which is whether states have a moral obligation to comply with international law. In the Conclusion, I return to the premises and goals of international-law scholarship.

1. CAN A STATE HAVE OBLIGATIONS?

   In common speech and the speech of politicians and diplomats, states are corporate agents that have intentions, interests, and obligations; they can declare war, make promises, and form alliances; they can grow, shrink, divide, and merge. For some scholars, the use of anthropomorphic language to refer to collectivities like states and corporations is a convenience only. (3) According to these scholars, only individuals can have obligations, and references to state obligations are metaphors for the duties of rulers or citizens.

   One could imagine an international-law theory that starts from these individualistic premises. An old version is that princes recognize that they owe one another moral obligations, and these mutual obligations form the basis of international law. Hume took this position, qualifying it only with the claim that because states depend less on each other for aid than individuals do, the obligations among princes have less force than the obligations among ordinary citizens. (4) But with the rise of the nation state, this view could no longer be sustained. For Morgenthau, nationalism spelled the end of international ethics because the masses of one state do not feel any sense of obligation toward the masses of another state. The masses of one state will also not tolerate leaders who have ethical scruples; on the contrary, each nation identifies its own values with the truth and seeks to impose them on others through violent means if necessary. (5) Under such circumstances there can be no international law that exerts influence on the behavior of nations.

   Morgenthau's argument relies on a pessimistic empirical claim about citizens' sense of obligation. If one adopted a more optimistic view, could an individualistic theory of international law be created? Suppose that the government serves as an agent of the citizens, and when the government makes promises, the citizens inherit the obligation to keep the promises. They discharge this obligation by pressuring governments to keep their promises and removing governments that do not. Citizens also pressure the government to comply with other obligations under international law. When one government takes the place of another, citizens must pressure the new government to comply with obligations created by the old government.

   The problem with this view for the international-law theorist is that it contradicts the fundamental premise of international law theory, namely, that states--not individuals or governments--bear legal obligations. If international legal obligations were borne by individuals or governments, rather than by states, then an international obligation would end whenever a government was replaced, or generations of citizens turned over. Treaties would constantly expire on their own; customary international law could not persist for more than a few years. In addition, nondemocratic governments would not be able to bind citizens to international law, and even in a liberal democracy, the problem of aggregating preferences through voting procedures and representative institutions would sometimes break the agency relationship. Because the state drops out of the picture, every international obligation is vulnerable to the claim that citizens, or discrete groups of citizens, did not acquire the obligation through consent or some other acceptable procedure. For these reasons, international law is not built on the obligations of individuals. (6)

   The more common view is that a state, like other corporate bodies, can bear obligations. (7) States have obligations to protect the rights of citizens. They have obligations to keep their promises, respect the sovereignty of other states, and help their allies. It cannot be denied that people speak this way, and that this way of speaking is meaningful. Similar language is used for corporations, religious associations, and other collective bodies, and it gives us no trouble in these contexts. Still, states do not act by themselves; they must be made to act by leaders and citizens. Even if states can be said to have obligations, the leaders and citizens must believe that they have a duty to guide the state in a way that is consistent with those obligations. If they do not, the obligations of the states are idle and of no importance.

   A useful analogy comes from the corporate world. Corporations have legal and moral obligations that are independent of the obligations of shareholders and other stakeholders. When a corporation violates a legal obligation, it must pay fines and other penalties. To pay these fines and penalties, the corporation diverts revenues that would otherwise go into the pockets of shareholders. These shareholders have no basis for complaining that they are being made to pay for legal violations that they did not commit, did not know about, or could not have stopped--such as illegal acts secretly committed before current shareholders bought their shares. The mason they have no basis for complaint is that they voluntarily accepted these obligations when they purchased the shares. (8) The price they paid reflected a discount for the market's estimate of existing corporate liabilities, however incurred, given that the shareholders' right to the corporation's revenue stream is, as a matter of law, secondary to the rights of holders of fixed obligations on account of the corporation's legal violations. Citizens, by contrast, do not purchase their citizenship. If a prior government made a bad promise, one cannot tell current citizens that their price of admission already reflects that obligation. If citizens have a moral obligation to cause the state to comply with its obligations, the reason cannot be similar to the reason that shareholders must accept the corporation's...