American self-defense shouldn't be too distracted by international law.

• Author: Rabkin, Jeremy A.
• Position: International Rule of Law

INTRODUCTION

Since the attacks of September 11, 2001, the United States government has pursued a series of energetic policies designed to protect America from the threat of Islamist terror networks. (1) Some of these policies are intensely controversial. (2) Critics in other countries protest that the United States has acted in defiance of international law. Some of this criticism has been embraced by domestic opponents of the Bush administration, particularly those in American law schools. Professor Jeremy Waldron, for example, offered a version of such criticism during the 2005 Federalist Society Student Symposium and in earlier writings, illustrating the larger pattern of criticism.

The purpose of this Article is not to mount a defense of any particular American policy of recent years. Instead, this Article challenges the critics' underlying premise that international law has the same sort of claim on our government as domestic law and that war measures abroad can accordingly be judged in the same terms as police abuses at home.

The arguments in this Article follow the three general kinds of arguments advanced by critics of international law. First, international law does not usually have the clarity and specificity of domestic law, particularly in most areas invoked by critics. International law in these areas is "law" by courtesy or aspiration more than it is a reliable guide to actual international conduct. Second, although some critics try to escape the obvious legal deficiencies of international law by appealing to the underlying values that treaties are supposed to embody, as soon as one looks behind limited or ambiguous treaties to seek out the fundamental principles of those treaties, one must quickly reckon with the most fundamental principle: the right and obligation of self-defense. As the Founders saw it, that principle was paramount to any legal standard. Will such arguments leave international law without any moral force? Should nations not, as some critics suggest, hearken to international standards to preserve at least the possibility of a lawbound world? The last section of this Article addresses this argument, with this countering point: If international standards are to reflect enduring principles of justice, they must be flexible enough to accommodate new circumstances. It is not in America's interest--in the longer view, it is in no one's clear interest--to try to preserve dysfunctional international standards merely for the sake of showing devotion to the idea of standards.

1. INTERNATIONAL LAW IS LESS RELIABLE THAN DOMESTIC LAW

   The idea that some legal standards transcend national boundaries--that otherwise independent nations are subject to a more general law of right conduct--is an old idea. According to Hugo Grotius, the seventeenth-century Dutch jurist, this idea was already well recognized among the ancient Greeks and Romans. (3) But Grotius, like his predecessors, still associated this more general law with jus gentium ("law of nations"). (4) This older term was used by Roman jurists and was then adapted by medieval commentators who gave it a somewhat different significance. (5) The term implies something broad, encompassing, and perhaps foundational--a law recognized by all nations. Hence, as Grotius indicated, it was a law closely related to the law of nature. (6) Later in the seventeenth century, the German jurist Samuel Pufendorf, often regarded as an intellectual heir to Grotius, published a treatise called De Jure Naturae et Gentium ("On The Law of Nature and Nations") highlighting the close connection between the law of nature and law of nations. (7)

   By contrast, the modern term "international law" sounds much more specialized and precise than the "law of nature." Legal studies are divided into subjects like "labor law," "tax law," and "contract law." International law is often referred to as if it were one more well-defined body of distinctive rules and procedures. There are specialized treatises and textbooks on international law similar to those in other subjects. Law schools do not, in the same way, provide first or second year law students with general courses or special case books on "the law of nature," which seems too vague or speculative for the training of practicing lawyers.

   The change in nomenclature appears to have been made quite deliberately. The new term, "international law," was coined in 1789 by the English legal reformer Jeremy Bentham. (8) Bentham wanted to emphasize that international law had nothing to do with natural law or with principles common to legal systems in many different nations. He complained that the term "law of nations" might be taken "to refer to internal jurisprudence," whereas the new term would clarify that it was only concerned with "mutual transactions between sovereigns." (9) Having narrowed the subject in this way, Bentham then offered very little comment on the substance of this specialized law--presumably because he did not think there were many clear standards of obligation from one state to another.

   Because "international law" has the same verbal form as "contract law" or "patent law," it is easy to fall into the trap of assuming that it has the same clarity or reliability as other kinds of law. Until quite recently, however, international law had a very vulnerable and questionable status. (10) If one looks at actual treatises on international law in the nineteenth century and down to quite recent times, one almost always finds an initial discussion of an apologetic nature, trying to address doubts about whether international law should truly be considered real law. (11) Yet critics who protest that the Bush administration has "defied international law" in its war policies speak as though international law has now achieved a degree of clarity, precision, and reliability that it never used to have. How could that be so? There is still no international legislature to declare or elaborate international legal standards. There is still no reliable means of interpreting or enforcing most standards that do exist.

   Skepticism toward international law did not begin with the Bush administration. It can be traced back through the entire history of American diplomacy. The American Founders did not have high expectations for international law. (12) The Constitution was drafted before the new term had come into use, so it still refers to the "law of nations." (13) In context, the reference implies that the relevant "law" is too uncertain to be recognized by American courts without action by the American legislature. At the constitutional convention in Philadelphia, there was a direct challenge to this provision, on the ground that no one legislature could "define" for itself the content of "the law of nations." (14) The challenge was met with the counter-argument that the relevant "law" here was too vague, in many areas, to provide reliable standards without such unilateral legislative clarifications. (15) The Constitution does include "treaties" within the "supreme Law of the Land," (16) but it does not, in this connection, mention customary law or any other aspects of the general "law of nations." Even the supremacy given to treaties does not place them on a higher plane than ordinary legislative enactments at the federal level. The implication, repeatedly embraced by the Supreme Court, is that an ordinary federal statute will supersede the most solemn treaty commitment if the statute is enacted after the ratification of the treaty. (17)

   Turning from the text of the Constitution to what the Founders said in its defense, it is clear that the limited provision for "international law," as it is now known, was not an oversight. For a number of reasons, the Founders cautioned against placing great trust or hope in international law. (18) The Federalist did not miss the implications for what is now called international law. In fact, The Federalist No. 15 begins by invoking the obvious failings of international treaty schemes to prove that the American states will not reliably cooperate unless placed under a common government with full governing powers. In Europe, "all the resources of negotiation were exhausted" in arranging elaborate treaty schemes for "establishing the equilibrium of power, and the peace of that part of the world," but these schemes were "scarcely formed before they were broken...." (19) The Federalist No. 15 cites this experience as "an instructive, but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith...." (20) The same discussion concedes that there is "nothing absurd or impractical" in an "alliance between independent nations... for certain defined purposes precisely stated in a treaty; regulating all the details of time, place, circumstance, and quantity...." (21) It cautions, however, that even more focused "compacts" of this kind, which "exist among all civilized nations," are "subject to the usual vicissitudes of peace and war; of observance and non-observance, as the interests or passions of the contracting Powers dictate." (22)

   One might respond to this sober view by pointing out that the Founders lived in a different world. They wrote before the Hague Peace Conferences, the Geneva Conventions, the UN Charter, and UN-sponsored human rights conventions. Still, the "law" which has received so much attention in recent controversies about American policy remains "law" in a rather special sense, at least when it is international law. Do conditions of confinement of suspected terrorists at Guantanamo Bay violate the Geneva Convention? The Convention stipulates that it applies to uniformed (or at least, clearly marked) combatants, acting under military discipline, and observing the laws of war (23)--conditions that do not seem, in any way, to apply to terror operatives from Afghanistan. Do some interrogation...