Making international law without agreeing what it is.

• Published date: 01 January 2011
• Author: Cheng, Tai-Heng
• Date: 01 January 2011

ABSTRACT

This Article explores how international law works in spite of its fragmentation into radically different conceptions of law. Using the United States' invasion of Iraq and Israel's construction of a wall around Palestine, the Article shows how outcomes of a legal nature can be reached in spite of decision-makers' different conceptions of international law. The Article uses two major conceptions of international law--positivism and policy-oriented jurisprudence--to explain and address fragmentation. It demonstrates that the gap between the two conceptions of international law does not actually reflect meaningful conceptual disagreements. Instead, they are differences of normative commitments that are anterior to conceptualizing law. These pre-concept commitments relate to the purpose of law, the ideal type of law, and the importance of semantics. The Article makes three interlocking proposals to address the fragmentation of international legal theory. First, decision-makers should clarify what they designate by the word "law" so that they may engage each other meaningfully. Second, certain international institutions, such as tribunals, may partially address pre-commitment conflicts because they have established hierarchies of conceptions of law. Third, outcomes will be reached through a process of claims and counterclaims about which conception should prevail. This Article concludes by testing its proposals against the United States' invasion of Iraq and Israel's construction of the wall.

I. LAW IN TWO VIGNETTES

One of the enduring puzzles in international law is how international outcomes are reached even though different decision-makers, such as judges on tribunals or foreign policy advisors, have varied conceptions of international law that require them to reach different decisions. This Article addresses the puzzle by examining two major conceptions of international law: positivism and policy-oriented jurisprudence. (1) It makes a number of contributions to solving fragmentation. First, the Article corrects the misunderstanding that positivism and policy-oriented jurisprudence are in conflict over whether law is distinct from politics. In fact, both conceptualize law as separate from politics. Second, it explains that the conflict between the two conceptions of international law is more nuanced than some realize. Policy-oriented jurisprudence requires its adherents to account for policy considerations in their appraisals of legality. Hard positivism is in conflict because it excludes policy from law, albeit hard positivism may have limited explanatory power in international law. Soft positivism is less in conflict because it accommodates policy as a criterion for legality when a legal rule commands renvoi to policy. It only parts ways with policy-oriented jurisprudence when policy-oriented jurisprudence considers policy beyond what legal rules appear to mandate. Yet, this is not a meaningful conceptual disagreement. The disagreement instead arises from differing normative commitments anterior to conceptualizing, which this Article terms "pre-concept commitments." These pre-concept commitments relate to the purpose of law, the ideal type of law, and the value of semantics. Third, the Article suggests that problems arising from the fragmentation of legal theory can be minimized when decision-makers clarify what they mean by "law" and when international institutions apply hierarchies of conceptions. Ultimately, however, in problems where hierarchies are absent or not fully controlling, outcomes will tend to reflect a mix of conceptions of international law, the normative attractiveness of their respective prescriptions, and the power of decision-makers backing each conception of international law.

The fragmentation of international legal theory is an age-old issue that has vexed jurists, philosophers, and decision-makers in international problems. Although this problem is not new, it is today magnified by broader and deeper international interactions that all require regulation, and which are not fully coordinated, in part because international law remains fragmented. For centuries, there have been diverse viewpoints on what international law is and how it works (and, relatedly, whether international law is even law and whether it works at all). (2) However, the problem of fragmentation has now become acute, as different conceptions of international law have proliferated and some have become more entrenched. (3) Without agreement on what international law is, who it binds, and how it controls actions, governments may reach different decisions about what is lawful. National courts and international tribunals may prescribe conflicting legal principles and inconsistent outcomes with potentially destructive consequences for world order. Corporations and individuals may be left uncertain about their legal protections in their international activities.

Consider the invasion of Iraq. On November 8, 2002, the United Nations Security Council adopted Resolution 1441. (4) The operative provision stated that the Security Council "[d]ecides to convene immediately upon receipt of a [disarmament and inspection] report [on Iraq] ... in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security...." (5) As it became clear that Saddam Hussein would breach Resolution 1441, the United States considered whether to preemptively invade Iraq. It had to decide if preemptive force was lawful. The Legal Adviser of the United States Department of State, William H. Taft IV, stated that his conception of international law was based "not on abstract concepts, but on the particular events that gave rise to [state action]." (6) In the case of Iraq, the legality of preemption was partly contingent upon geopolitical factors that had grave policy implications, which included: "the naked aggression by Iraq against its neighbors, its efforts to obtain weapons of mass destruction, its record of having used such weapons, Security Council action under Chapter VII of the United Nations Charter, and continuing Iraqi defiance of the Council's requirements." (7) He concluded that "preemptive force is certainly lawful" and is "consistent with the resolutions of the Security Council." (8)

Three permanent members of the Security Council, France, China, and Russia, embraced a different conception of international law that was more rule driven. In their view, the Security Council had issued an authoritative rule that only the Security Council could decide whether to invade Iraq, They issued the following statement:

 Resolution 1441 (2002) adopted today by the Security Council
                 excludes any automaticity in the use of force.... In case of
                 failure by Iraq to comply with its obligations, ... [s]uch failure
                 will be reported to the Security Council .... It will then be for
                 the Security Council to take a position on the basis of that
                 report. (9)
                

The United Kingdom took a third position, which could be interpreted as a conception of law in which the content of rules are indeterminate and outcomes turn more on politics. On November 12, 2002, four days after

Resolution 1441 was adopted, the UK Attorney General, Lord Peter Goldsmith, advised the UK Foreign Secretary:

 [I]t was very clear from Resolution 1441 that, in the event of
                 Iraq's non-compliance, there would have to be a further discussion
                 in the Security Council.... [O]nly the Security Council could
                 decide on ... whether all necessary means were authorised. (10)
                

On March 17, 2003, Lord Goldsmith changed his mind. In response to a parliamentary question, he stated:

 Resolution 1441 would in terms have provided that a further
                 decision of the Security Council to sanction force was required if
                 that had been intended. Thus, all that resolution 1441 requires is
                 reporting to and discussion by the Security Council of Iraq's
                 failures, but not an express further decision to authorise force
                 (11)
                

A confidential statement by the UK Foreign Secretary to Lord Goldsmith might partly explain the UK Attorney General's inconsistent interpretation of Resolution 1441. The Foreign Secretary asserted that "if Iraq were to be found in breach of Resolution 1441, it was essential that we act pretty swiftly to take military action .... [T]his was of course primarily a military/political judgment." (12)

On March 20, 2003, the United States commenced Operation Iraqi Freedom. It invaded Iraq. Key members of the Iraqi government, including Saddam Hussein, were arrested or killed.

Divining conceptions of law from statements and events carries interpretative risk. Be that as it may, it appears that the permanent members of the Security Council may have adopted, or at least deployed rhetoric flowing from, different conceptions of international law. The chief lawyer for the State Department seemed to conceive of international law as a system in which the legality of preemptive force is determined in part by geopolitical context, and the ordinary meaning of words from a positive source alone (i.e., Resolution 1441) may not be dispositive. France, Russia, and China seemed to conceive of international law as a system of rules in which the express words of a positive source of law command obedience from international actors. The contradictory statements of the UK Attorney General, as well as the view of the UK Foreign Secretary, suggest a more critical conception of international law: a positive source may have indeterminate content, and politics controls outcomes. If these characterizations are reasonable, they present a theoretical puzzle of immense import. How were conflicts among different conceptions of international law resolved, and how was an outcome reached?

Conflicts among international legal theories also play out in international tribunals. Consider...