Eric Posner, son of my favorite Posner, has a new article out in Foreign Policy. I read it last night and waited to comment on it because it made me inexplicably angry. Many have focused on the part of his argument suggesting that Obama and Bush approached international law the same way. What frustrates me, however, is his last little bit, titled “International Law is a Worthy Goal: Not at all.” Posner argues that international law is nothing more than a means to an end, and anyone arguing otherwise is kidding themselves.*
Look, I understand the realist (state’s interests) argument that states only take action on the international stage when they get some kind of benefit out of it. I used to be (and maybe still am) a realist. Therefore, the realist in me suggests that creating international law might indeed be a tough task. But it’s still one worth undertaking. The lack of a Leviathan figure in international law might convince Posner that states will always ignore international law, so any such law is a false construction. But it seems to me like he’s forgetting a few things (and these things are nothing new):
States generally prefer predictability and stability, something international law provides. As Louis Henkin noted 30 years ago in How Nations Behave, most states observe most of the obligations of international law most of the time. International law provides a set of ground rules that, when successful, provide a counter-balance to individual state interest, thus increasing predictabilility. In other words, a good number of states include “violation of international law” in their cost-benefit analysis when determining whether to take a given international action. As Robert Keohane has observed, a state might agree to ignore the short-term advantages of breaking from international law because “it has an overriding interest in maintaining the overall system.” Or perhaps the state wishes to comply with the underlying norm that is the foundation of the law.
As states grow increasingly interdependent, they want a rational way of regulating their relations and punishing “rogue acts.” International law provides an organized means of implementing the reciprocity principles of game theory (something Susan talked about earlier) while trying to avoid problems of escalation or sanction resistance. In an optimal international law system, a violation of international law by one member elicits a response from an entire community of states. In other words, you have an act, followed by unified retaliation. Thus, the system is somewhat like “super tit-for-tat.”
International law often nourishes norms that guide state practice–even outside the international law realm. Consider free trade. Why did we not see a sharp decline into protectionism following the recession? Some might argue that the economics profession has led us out of the darkness. I’m skeptical. I would suggest that free trade has gained widespread acceptance primarily through the creation of international law structures like the WTO. Without those laws, we might have been perfectly willing to close up the borders and stop pretending to be so free trade amenable.
Realism may not be an accurate description of the state of international affairs. Realism seems to assume a zero-sum game: international law is always doomed to fail because one state’s interest will conflict with another. But is zero-sum really the right conception? There are issues where state cooperation can improve circumstances for all players in the game (perhaps most obviously in economics). Realism also places a heavy emphasis on state-centered activity. But in today’s global economy, are states even in the driver’s seat anymore? I don’t want to tackle those issues here, I just want to note that they’re out there.
In sum, I’m just not convinced that we should ditch any attempt at a viable system of international law. Posner’s example of the “illegal military intervention in Kosovo” saving lives suggests that the current system should allow for humanitarian intervention. In doesn’t suggest we should ditch the system altogether.
*The cynical part of me says that this argument is just Posner trying to incite people to read his new book, The Perils of Global Legalism. But who knows.
-Michael
