This panel was convened at 2:45 p.m. on Thursday, March 26, by its moderator, Andrew Guzman of the University of California-Berkeley School of Law, who introduced the panelists: Jose Alvarez of Columbia University School of Law; Antonia Chayes of Tufts University; Thomas Franck of New York University Law School; and Sean Murphy of George Washington University Law School.
RETHINKING INTERNATIONAL LAW AS LAW
The theme of this year's ASIL conference is "International Law as Law." This title reflects, I think, a dual perspective among international lawyers. First, it evidences the belief that international law is very clearly "law"--after all, the title does not offer any suggestion that it might be otherwise. Second, it evidences a certain kind of insecurity or concern that maybe some people--maybe even some people at this conference--have doubts about whether it is law. One would not, after all, hold a conference with the theme "American Law as Law." This insecurity, coupled with dogged commitment to the notion that international law is and must be law, seems to be inherent in international law and how we think about the subject, and it appears much more often than simply in the theme of this conference.
This panel seeks to take on the question of what it means to say that international law is law. This is a variation on the age-old question of whether international law is law, and reflects the fact that we, international lawyers and scholars, have not succeeded in forming a compelling and persuasive answer to that question. It is appropriate, therefore, that we return to that question and that we try harder to understand and explain what we mean when we say international law is law.
The answer to the question of whether international law is law depends, of course, on how one defines "law." If law is defined by the use of coercive force, then international law clearly does not qualify. The instances of force being used to enforce international law are vanishingly few. Furthermore, if enforcement is key, it is not enough to point out that international law is binding on states because, in the absence of enforcement, it is hard to even know what it means for a rule to be "binding." The word suggests that it is mandatory--that it must be done--but if there is no penalty for failing to do it, in what sense is it mandatory? Though coercive force is a useful definition of law, and one that is easy to grasp, it is a fair retort to observe that domestic law often operates without coercive force. The Supreme Court lacks the coercive power to enforce its decisions, yet when it issues rulings contrary to the interests of the executive branch these are not only considered law, they are complied with.
If law requires a legislature that can enact mandatory rules over the objection of those who will be bound by the rules, international law again falls short. On the other hand, there is no obvious reason why this particular method for creating legal rules should be the criteria for creating law.
Ultimately, this exercise of seeking to demonstrate that international law is or is not law strikes me as futile. It is clear to all that international law differs in important ways from domestic law. It is equally clear that it provides a set of rules that seek to influence state behavior.
This leaves us with a more sensible question: how well does international law do in its effort to influence state behavior? Does it provide a valuable constraint on conduct, or is it too easily ignored? This is the debate that should interest us, without much regard for the question of whether it is assigned the label "law." If we want to understand international law we have to understand how it shapes state behavior.
States, of course, are influenced by many things that have nothing to do with international law, and these often matter much more than international legal rules. They are influenced by geography, which causes the allocation of land rights to be related to the potential uses of the land. They are influenced by government structures--democracies behave differently from dictatorships. They are influenced by their neighbors--the Great Wall of China was not originally built as a tourist attraction.
But if states are influenced by their neighbors, and by the expectations and demands of those neighbors, they are also affected by what their neighbors say and do and by what they say to their neighbors. This starts to sound like international law. It also sounds like politics. How do we know which it is? Can we say that when the two sign a treaty it is law but up until that moment they are engaged in politics? Surely that is not a useful distinction. In the end, there is no stark separation. Though not all international politics involves law, all international law involves politics. We cannot think about international law without also thinking about politics.
This presents a challenge to the international lawyer who finds comfort in rules. At times, the discipline of international law has sought refuge in doctrine, going so far as to define the field through doctrine. The most commonly used definition of international law is that provided in the Statute of the International Court of Justice, which lists the sources of international law as treaties, custom, general principles, and judicial decisions and teachings. (1)
But this retreat to doctrine leaves us with a circular set of definitions. International law is defined by a set of terms that themselves are ultimately defined as being international law. This is most obvious in the case of treaties, which serve as a critical part of the definition of international law but are themselves defined as agreements that are governed by international law. (2)
It seems to me that it is better to accept that international law is not easily separable from politics. It is better to recognize that decisions about whether or not to comply with international law are always intertwined with political questions. When the United States decided to invade Iraq in violation of international legal rules, when it chose to erect steel tariffs in 2002 in violation of WTO rules, and when it signed the Universal Declaration of Human Rights, politics played a critical role in its choices.
Abandoning the effort to draw a bright line between politics and international law does not, however, mean abandoning international law or giving up hope that it can help solve the world's most difficult problems. Just the opposite is true. By thinking more realistically about international law and its place in the world, we can hope to make it stronger and more effective.
Moving away from a doctrinal perspective has an effect on the way we view international law. We must view international law as an institution that seeks to help states order their affairs within an anarchic world. This view begins to give us a sense of how international law is law. It is a set of artificial institutions and rules, created by human beings, that seeks to improve cooperation among states.
The success or failure of this institution ultimately depends on whether it succeeds in changing the behavior of states. This leads to the question of how international law alters state behavior. This is an essential question in international law, and it is one on which the panelists have written a great deal. (3) There are disagreements among us about how states come to be influenced by international law, but I do not wish to focus on those differences. Instead, I want to emphasize that we cannot possibly understand what it means for international law to be "law" until we understand how it relates to state conduct.
This focus on the impact of international law suggests a new definition. International law should be defined to include those cross-border legal institutions that affect, or seek to affect, the behavior of states and non-state actors. This definition avoids the circularity of our existing definitions of international law and treaties as well as the familiar failings of our definition of customary international law. It also forces us to acknowledge that the category of international law is larger than is traditionally recognized. The Universal Declaration of Human Rights, for example, qualifies as international law under this definition. Despite the fact that it is considered to be "non-binding" or "soft law," there can be little question that it sought to influence state behavior. Its non-binding nature may mean that its impact on states is diminished relative to what it would be if it were a treaty; but, it is a part of the legal landscape that international lawyers must work with and understand. The same could be said of decisions of the International Court of Justice or the World Trade Organization' s Appellate Body. Rulings from these bodies are not recognized as international law under Article 38 of the ICJ statute (except in a very narrow sense), yet they form a critical part of our understanding of the obligations of states. Though these tribunal decisions are not binding on states that are not party to the dispute, they create a form of quasi-precedent that has an enormous effect on our understanding of the obligations of all states. We must include these forms of international rulemaking in our definition of international law. Soft law and judicial decisions must both be part of our understanding of international law. (4)
All of this helps us to address the title of today's panel: "In What Sense is International Law Law?" International law is law in the sense that it seeks to influence the behavior of its subjects (in this case primarily states, but also non-state actors). Like any kind of law, international law is not always effective and it is not always just. Nevertheless, the international order does better when international law is working well, and when states are persuaded to comply with their obligations. The study and practice...