Toward an international rule of law: Distinguishing international law-breakers from would-be law-makers

Journal of Ethics

Volumn 9, Issue 1-2, 2005, Pages 225-246

  Goodin, Robert E ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

Civil disobedience; Customary international law; Fairness; Hegemony; Rule of law

Indexed keywords

EID: 33644910933     PISSN: 13824554     EISSN: 15728609     Source Type: Journal    
DOI: 10.1007/s10892-004-3327-6     Document Type: Article

References (86)

1. For a compelling illustration of such "moral minimalism," see Larry May, Crimes against Humanity (Cambridge: Cambridge University Press, 2004), Chapters 3, 11.
2. The idealism of the League of Nations contrasts sharply with the statism of the United Nations in this respect [Josef L. Kunz, "The United Nations and the Rule of Law," American Journal of International Law 46 (1952), pp. 504-508].
3. The realist position is aptly expressed by Eric Posner as follows: behavior that apparently complies with international law can be understood as merely prudential behavior⋯ Because states have no intrinsic desire to comply with international law, all international law is limited by the rational choice of self-interested actors. Efforts to improve international cooperation must bow to this logic, and ⋯ states cannot bootstrap cooperation by creating rules and calling them 'law'. [See Eric A. Posner, "Do States Have a Moral Obligation to Obey International Law?," Stanford Law Review 55 (2003), p. 1919
4. and similarly Jack L. Goldsmith and Eric A. Posner, "A Theory of Customary International Law," University of Chicago Law Review 66 (1999), pp. 1113-1177].
5. Louis Henkin, "International Organization and the Rule of Law," International Organization 23 (1969), p. 656.
6. Neither the "rule of law" nor "fairness" more generally is the only moral value in play, of course. We ought, however, be hesitant to trade such values off lightly [see Jeremy Waldron, "Security and Liberty: The Image of Balance," Journal of Political Philosophy 11 (2003), pp. 191-210].
7. In what "is generally recognized as a complete statement of the sources of international law," Article 38.1 of the Statute of the International Court of Justice specifies: (a) international conventions [i.e., treaties]⋯; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) ⋯ judicial decisions and teachings of the most highly qualified pubicists of various nations⋯ [Ian Brownlie, The Principles of Public International Law, 4th edition (Oxford: Clarendon Press, 1990), p. 3].
8. Died-in-the-wool positivists might prefer to regard only the first as "international law, strictly speaking," regarding the rest as merely "international morality" [see e.g., Henry Sidgwick, The Elements of Politics (London: Macmillan, 1891), Chapter 17, pp. 272-284]. I stand here on the plain fact of the matter that international law and courts do recognize all those other sources.
9. Article 53 of the 1969 Vienna Convention on the Law of Treaties holds that, A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same characters [International Legal Materials 8 (1969), pp. 679-713].
10. A. V. Dicey, The Law of the Constitution, 7th edition (London: Macmillan, 1908), Part 2.
11. Jeremy Waldron, The Law (London: Routledge, 1990), Chapter 3.
12. This is the model of "realist" theorists of international relations such as Hans J. Morgenthau, Politics among Nations, 3rd edition (New York: Knopf, 1961);
13. see Headley Bull, The Anarchical Society (London: Macmillan, 1977).
14. As emphasized by Goldsmith and Posner, "A Theory of Customary International Law."
15. Or - for completeness - a "rule of law" might emerge through any practically feasible combination of those two processes. The evidence of experimental game theory, however, suggests the motivational precariousness of mixed cases [see Robert E. Goodin, "How Amoral Is Hegemon?," Perspectives on Politics 1 (2003), pp. 123-126].
16. See Lea Brilmayer, American Hegemony: Political Morality in a One-Superpower World (New Haven: Yale University Press, 1995)
17. and Joseph S. Nye, Jr., The Paradox of American Power: Why the World's Only Superpower Can't Go It Alone (New York: Oxford University Press, 2002).
18. H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), p. 56.
19. We might have republican-style worries about the "resilience" of the rule of law, in those circumstances; see Philip Pettit, Republicanism (Oxford: Oxford University Press, 1997), Part 1.
20. But the sovereign who internalizes the rule of law, and takes a critical reflective attitude toward its own conduct in light of that rule, is at least far different from one who merely "makes it a rule" (as a behavioral regularity) to do something similar. This is the key distinction in Hart, The Concept of Law, pp. 55-56.
21. My interest in this set of problems was piqued discussing a conference paper with Allen Buchanan, subsequently published as "From Nuremburg to Kosovo: The Morality of Illegal International Legal Reform," Ethics 111 (2001), pp. 673-705
22. and now reprinted in Allen Buchanan, Justice, Legitimacy and Self-determination (Oxford: Oxford University Press, 2004), Chapter 11. Although our analyses veered off in different directions, I remain grateful to him for that original inspiration.
23. A. W. B. Simpson, "The Common Law and Legal Theory" in A. W. B. Simpson (ed.), Oxford Essays in Jurisprudence, 2nd series (Oxford: Clarendon Press, 1973), pp. 77-99.
24. Informally, of course, Ludwig Wittgenstein's point always applies: You are forever remaking rules in the course of acting on them. In customary international law, too, law-applying is law-making [see Philip Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press, 1990)].
25. Hart, The Concept of Law, p. 90.
26. Later, Hart worries that international law "not only lacks the secondary rules of change and adjudication⋯, but also a unifying rule of recognition specifying 'sources' of law and providing general criteria for identification if its rules" (Hart, The Concept of Law, p. 209).
27. International standard-setting is a prime example of the other; for a raft of examples, see John Braithwaite and Peter Drahos, Global Business Regulation (Cambridge: Cambridge University Press, 2000).
28. Alternatively, of course, they may make proposals at the UN or various international meetings, they may file briefs to the International Court of Justice, and so on. But breaching existing law and forcing the issue into some international tribunal "brings the matter to a head" in a way those other methods do not, and can be regarded as the "principal" way for states to propose an amendment to customary international law in consequence.
29. "The Fundamental Constitutions of Carolina," Section 120, in David Wootton (ed.), Political Writings of John Locke (New York: Penguin/Mentor, 1983), p. 232.
30. In Hart's description, "The only mode of change in the rules ⋯ will be the slow process of growth, whereby courses of conduct once thought optional become first habitual or usual, and then obligatory, and the converse process of decay, when deviations, once severely dealt with, are first tolerated and then pass unnoticed" (Hart, The Concept of Law, p. 90).
31. Just as may be Dean Griswold's response to the civil disobedient: "It is the essence of law that it is equally applied to all, that it bind all alike, irrespective of personal motive. For this reason, one who contemplates civil disobedience out of moral conviction should not be surprised and must not be bitter if a criminal conviction ensues" [quoted and critiqued in Ronald Dworkin, Taking Rights Seriously (London: Butterworth, 1977), p. 206].
32. That is not to say that authorities would be justified in inflicting the same punishments on conscientious law-breakers breaking the law for good reasons [Daniel M. Farrell, "Paying the Penalty: Justifiable Civil Disobedience and the Problem of Punishment," Philosophy and Public Affairs, 6 (1977), pp. 165-184]. I merely mean to say that if authorities do choose to impose such punishments genuine civil disobedients ought be willing to take the punishments allocated to them.
33. As I say, this is "one way" - a broadly procedural one - for distinguishing lawbreakers from would-be law-makers. But some agents who pass this procedural test would still count as law-breakers. That would be the case if, for example, the amendment to customary international law that they are conscientiously proposing in this way would itself violate the unamendable (jus cogens) core of customary international law. I am grateful to Dora Kostakopoulou for this observation.
34. These are external indicators of an operational sort, by which we assess (however imperfectly) the actual intentions and motivations of actors breaking the law. Whether a state really is a "would-be law-maker" or simply a "law-breaker," when breaching customary international law, is definitionally determined by its intentions and motivations alone (note that civil disobedients, in contrast, might sometimes be defined in terms of these external indicators alone).
35. See, e.g.: Richard Wasserstrom, "Disobeying the Law," The Journal of Philosophy 58 (1961), pp. 641-653;
36. Hugo Adam Bedau, "On Civil Disobedience," The Journal of Philosophy 58 (1961), 653-665, respectively;
37. Hugo Adam Bedau (ed.), Civil Disobedience: Theory and Practice (New York: Pegasus, 1969);
38. Carl Cohen, Civil Disobedience (New York: Columbia University Press, 1971);
39. John Rawls, A Theory of Justice (Cambridge, Harvard University Press, 1971), pp. 363-390.
40. Similarly for a civil disobedient: "It is essential that the government know of his act if it is intended that the government shall change its policy because of the act" (Bedau, "On Civil Disobedience," p. 656;
41. see similarly Rawls, A Theory of Justice, p. 366).
42. The reason is that courts are reluctant to be seen as legislating. If a party comes before a court, domestically or internationally, admitting it has violated the law and agreeing to pay damages, the court will almost invariably regard the case as closed; it will virtually never reject that guilty plea and award judgment against the other party, who everyone agrees had (existing) legal right on its side.
43. Wasserstrom, "Disobeying the Law," p. 647.
44. Rawls, however, may be right in thinking that bringing "trial cases" lies in the penumbra of "civil disobedience" (Rawls, Theory of Justice, p. 367).
45. As in the case of Israel's raid on the Entebbe Airport to rescue Israelis held hostage there, or the US interception of the Egyptian airliner carrying terrorists responsible for the death of a US citizen on the hijacked ship, the Achille Lauro. This is the "passive personality principle" discussed in Louis Henkin et al., Restatement of the Law (Third): The Foreign Relations Law of the United States (Washington, DC: American Law Institute, 1987), Section 404 (comment a) and Section 402 (comment g).
46. See further: Malvina Halberstam, "Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety," American Journal of Internatinal Law 82 (1988), pp. 269-310; and
47. David Rodin, War & Self-Defense (Oxford: Clarendon Press, 2002), p. 110.
48. Of course, if (or when) the change is accepted there will be no legal consequences to be accepted. Even customary international law can sometimes change moderately quickly. On "instant custom," see Bin Cheng, "Custom: The Future of General State Practice in a Divided World," in R. St. J. Macdonald and Douglas M. Johnston (eds.), The Structure and Process of International Law (The Hague: Martinus Nijhoff, 1983), pp. 513-554.
49. Martin Luther King, Jr., "Letter from Birmingham City Jail," in Hiego Bedau (ed.), Civil Disobedience: Theory and Practice (New York: Pegasus, 1969), pp. 73-89.
50. John Rawls, "Legal Obligation and the Duty of Fair Play," in Sidney Hook (ed.), Law and Philosophy (New York: New York University Press, 1967), pp. 3-18;
51. and Rawls, A Theory of Justice, Chapter 5.
52. This criterion is used, among other things, to distinguish "civil disobedients" from "revolutionaries." But note that even revolutionaries might "respect the rule of law," at least in the sense that what they want to institute is a law-governed order (simply one with a whole different set of laws).
53. "Ruling Pertaining to the Differences between France and New Zealand arising from the Rainbow Warrior Affair," American Journal of International Law 81 (1987), pp. 325-328.
54. How "binding" the arbitration was might be queried in light of the fact that the French subsequently secured transfer of their agents on disingenuous health grounds to French territory; reparations were paid, however [see more generally Oran R. Young, The Intermediaries (Princeton: Princeton University Press, 1967)].
55. Nicaragua v. United States (1986): Judgment available at www.icj-cij.org/icjwww/Icases/iNus/inus-ijudgment/inus-ijudgment-19860627.pdf (accessed October 30, 2003). With due notice, of course, the US could have withdrawn from the jurisdiction of the Court altogether; but that had not been done before the ruling was handed down.
56. Kenneth W. Abbott and Duncan Snidal, "Hard and Soft Law in International Governance," International Organization 54 (2000), p. 421 (emphasis mine).
57. Kunz, "The United Nations and the Rule of Law," p. 504.
58. More efficiently and effectively than hard law, perhaps. See, in addition to Abbott and Snidal, "Hard and Soft Law in International Governance";
59. Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter and Duncan Snidal, "The Concept of Legalization," International Organization 54 (2000), pp. 457-488;
60. and Robert O. Keohane, After Hegemony (Princeton: Princeton University Press, 1984).
61. The process is effectively described by Christian Reus-Smit, "Politics and International Legal Obligation," European Journal of International Relations 9 (2003), pp. 591-625.
62. Hart, The Concept of Law, pp. 214-215.
63. What Hart says a propos norms against aggression generalize to various other soft norms of international law: "To initiate a war is, even for the stronger power, to risk much for an outcome which is rarely predictable with reasonable confidence" (Hart, The Concept of Law, p. 214).
64. Hart, The Concept of Law, p. 214.
65. Enfeebled though Russia might now be, it retains a serious nuclear arsenal, so the US might well have second thoughts about its new doctrine of preemptive self-defense when President Vladimir Putin announced, "If the principle of preventive use of force continues to develop in international practice, then Russia reserves the right in an analogous manner to defend its national interests" (Canberra Times, November 5, 2003, p. 16).
66. Self-interest, in the first instance, in these sorts of ways: our not dumping toxic chemicals into rivers flowing into their territory is a quid pro quo for their not dumping chemicals into rivers flowing into our territory; our not abusing the human rights of their citizens is a quid pro quo for their not abusing the human rights of our citizens; and so on.
67. Waldron, The Law, p. 37.
68. This is one of the first things that any writer on "the rule of law" invariably says [see, e.g., Lon L. Fuller, The Morality of Law, 2nd edition (New Haven: Yale University Press, 1964), pp. 46-49;.
69. Cass R. Sunstein, Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996), p. 104;.
70. William N. Eskridge, Jr. and John Ferejohn, "Politics, Interpretation and the Rule of Law," in Ian Shapiro (ed.), Nomos XXXVI: The Rule of Law (New York: New York University Press, 1994), p. 265].
71. Of course, it is a familiar problem with "generalization tests" in both ethics and law that principles that appear to be general in form might be extensionally equivalent to specifying one named individual [for an example from tax law, see Russell Hardin, Collective Action (Baltimore: Johns Hopkins University Press, 1982), p. 78]. Thus, this requirement ought be construed as demanding generality both in form and in substance. Note that generalizability is only one among several necessary conditions for the rule of law being respected, however.
72. "It is an ancient observation that powerful states, when they are belligerents, impose upon the neutrals the breaking off of trade relations with their enemy, whereas the same powerful states, when they are neutrals in a war between minor Powers, insist in the strictest way on the rule of international law, according to which neutrals have ⋯ a right to trade with all the belligerents" (Kunz, "The United Nations and the Rule of Law," p. 504).
73. Or the effect of applying the same rules will be very different, given differential resources with which to take advantage of those rules.
74. At least in "relevantly similar circumstances" - which someone wanting to differentiate these cases might claim were present in these cases but absent in the Kennedy case.
75. George W. Bush, "Remarks at Fort Drum, NY, July 19, 2002";
76. quoted in Michael Byers, "Preemptive Self-defense: Hegemony, Equality and Strategies of Legal Change," Journal of Political Philosophy 11 (2003), p. 181.
77. Subsequent defenses of the Iraq invasion might invoke other rationales - humanitarian intervention in defense of an oppressed people, for example - which the US might more plausibly be prepared to see generalized. But those are different from the Bush doctrine of preemptive self-defense as announced at Fort Drum. Note that one problem with notions of preemptive self-defense in general is that the remoteness of the threat elides the distinction between aggressor and defender: insofar as the hostile intentions in view are not "fully formed," your preemptive selfdefense against my merely-inchoate hostile intentions appear from my perspective as a much firmer intention on your part to attack me, against which I have a correspondingly more robust right to defend myself against by preemptively attacking you.
78. Or perhaps claiming special exemption from the general rules, on the grounds that special powers must come with its special responsibilities as the de facto world policeman. Remember, however, the police are bound by the law just like everyone else, and any special powers they have must be incorporated into the law in the ordinary way - which, in customary international law, must be via the consent and customary practice of the community of nations overall.
79. G. John Ikenberry, "Is American Multilateralism in Decline?" Perspectives on Politics 1 (2003), p. 540.
80. See further Oded Lowenheim, "'Do Ourselves Credit and Render a Lasting Service to Mankind:' British Moral Prestige, Humanitarian Intervention and the Barbary Pirates," International Studies Quarterly 47 (2003), pp. 23-48.
81. Goldsmith and Posner, "A Theory of Customary International Law," p. 1158.
82. Harry S Truman, "Presidental Proclamation No. 2667: Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf," 28 September 1945, available at www.oceanlaw.net/texts/truman1.htm (accessed April 8, 2004). The Convention on the Law of the Sea, concluded in 1982, came into effect in 1994.
83. Ikenberry, "Is American Multilateralism in Decline?," p. 540.
84. As in a limited way the US Alien Tort Claim Act of 1789 does, in giving US federal courts "jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." The interpretation and scope of that statute is judicially disputed, most recently in the US Supreme Court in Sosa v. Alvarez-Machain, No. 03-339, consolidated with U.S. v Alvarez-Machain, No. 03-485 (oral argument July 2004).
85. In their own interests, to be sure - certainly in the first three cases, anyway, although the worst that even the most cynical arch-realist can say against Belgium is that it is easy for it to adopt that policy because it does not have many troops stationed overseas who might get caught up in any generalization of this policy (which is the official US worry about the International Criminal Court).
86. Earlier versions were presented at the University of Stockholm and the American Philosophical Association, Pacific Division, Mini-Conference on "Global Justice." I am grateful for comments, then and later, from Gustaf Arrhenius, Lars Bergstrom, Jim Bohman, John Gardner, Lena Halldenius, Dora Kostakopoulou, Larry May, Eric Posner, John Tasioulas and Janna Thompson.