Finding international law: Rethinking the doctrine of sources

Iowa Law Review

Volumn 93, Issue 1, 2007, Pages 65-129

  Cohen, Harlan Grant ^a  

^a UNIVERSITY OF GEORGIA   (United States)

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EID: 38849163607     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (364)

1. JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 225 (2005) ("International law is a real phenomenon, but international scholars exaggerate its power and significance.").
2. Id. at 108 (concluding that "modern multilateral human rights treaties have little exogenous influence on state behavior").
3. Id. at 121 (finding "no evidence that ratification of human rights treaties affects human rights practices").
4. Oona A. Hathaway, Between Power and Principle: An Integrated Theory of International Law, 72 U. CHI. L. REV. 469, 515 (2005)
5. [hereinafter Hathaway, An Integrated Theory].
6. LOUIS HENKIN, HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY 47 (2d ed. 1979).
7. See Kal Raustiala, Form and Substance in International Agreements, 99 AM. J. INT'L L. 581, 602 (2005) ("Substantial numbers of scholars have seconded Henkin's claim.").
8. Examples abound. See, e.g., Anthony D'Amato, The Concept of Human Rights in International Law, 82 COLUM. L. REV. 1110, 1121 (1982) (quoting HENKIN, supra note 5, at 47);
9. Mark A. Chinen, Game Theory and Customary International Law: A Response to Professors Goldsmith and Posner, 23 MICH. J. INT'L L. 143, 155 (2001) (same);
10. Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 CAL. L, REV. 1823, 1842 n.79 (2002)
11. [hereinafter Guzman, A Compliance-Based Theory] (same);
12. Jenny S. Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429, 475-76 (2003) (same),
13. Harold Koh uses the statement to frame his transnational legal process theory. See Harold Hongju Koh, The 1998 Frankel Lecture, Bringing International Law Home, 35 HOUS. L. REV. 623, 632 (1998)
14. [hereinafter Koh, Bringing International Law Home] ("In Professor Henkin's famous phrase, 'almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.'
15. But if this is so, why do they obey?"); Harold Hongju Koh, How Is International Human Rights Law Enforced?, 74 IND. L.J. 1397, 1411 (1999)
16. [hereinafter Koh, How Is International Human Rights Law Enforced?] ("I merely suggest viewing human rights enforcement through vertical, 'transnational legal process' lenses can help explain why in Louis Henkin's famous phrase, 'almost all nations observe almost all principles of international law almost all of the time.'"). Thomas Franck frames his theory this way, though without actually quoting Henkin.
17. Thomas M. Franck, Legitimacy in the International System, 82 AM. J. INT'L L. 705, 705 (1988) [hereinafter Franck, legitimacy] ("This observation is made not to register optimism that the half-empty glass is also half full, but to draw attention to a pregnant phenomenon: that most states observe systemic rules much of the time in their relations with other states.").
18. International Law: 100 Ways It Shapes Our Lives, http://www. asil.org/centennial/100/ways.html (last visited Nov. 11, 2007).
19. See id. (citing the international agreement at the International Meridian Conference in 1884, the 1964 Constitution of the Universal Postal Union, the 1949 U.N. Convention on International Road Traffic, various bilateral double-taxation agreements, and the 1958 U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards).
20. This is one of the most active areas of current international law scholarship. See generally ABRAM CHAYES' Sc ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGUIATORY AGREEMENTS 27 (1995) (proposing a "managerial" model of compliance that relies on repeated dialogues and interactions between states over rules);
21. MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN INTERNATIONAL POLITICS (1998) (describing the rise and influence of activist networks that operate across national frontiers);
22. Franck, legitimacy, supra note 7 (arguing that state compliance with international law results from perceived legitimacy of particular rules); Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 DUKE L.J. 621 (2004)
23. [hereinafter Goodman & Jinks, Socialization and International Human Rights Law] (suggesting that some state compliance may be best explained by acculturation or socialization rather than coercion or persuasion);
24. Guzman, A Compliance-Based Theory, supra note 6 (designing a reputation-based model of state compliance with international law);
25. Hathaway, An Integrated Theory, supra note 4 (arguing that state commitment and compliance to treaties are a function of transnational and domestic enforcement and collateral consequences);
26. Koh, Bringing International Law Home, supra note 7 (suggesting that states' compliance with international law results from its rules internalization into domestic legal systems);
27. Koh, How Is International Human Rights Law Enforced?, supra note 7 (same),
28. See infra Part III.A (describing these theories). 12. In order to find customary international law, one must find botti custom-that states act this way-and evidence of opinio juris-that states follow the rule because they believe diey are legally required to do so, not simply because it is pragmatic. Notably, evidence of opinio juris can be established by the violation of the rule, if the violating state makes efforts to justify its actions rather than simply acting.
29. They may, for example, find the consequences of compliance more dangerous than violation. Such a calculation may be particularly likely in situations involving national security. See Guzman, A Compliance-Based Theory, supra note 6, at. 1883-86.
30. See generally Koh, Bringing International Law Home, supra note 7;
31. Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YAI.E L.J. 2599 (1997)
32. [hereinafter Koh, Why Do Nations Obey?].
33. See generally THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (1995)
34. [hereinafter FRANCK, FAIRNESS];
35. THOMAS M. FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS (1990)
36. [hereinafter FRANCK, THE POWER OF LEGITIMACY];
37. Franck, Legitimacy, supra note 7.
38. Whether practice also rests on assumptions provided by the doctrine of sources will be considered infra in Part II.D.
39. See OSCAR SCHACHTER, The Doctrine of Sources and the Inductive Science of Law, in INTERNATIONAL LAW IN THEORY AND PRACTICE 35, 35-37 (1991).
40. Notably, many international law textbooks begin their discussion in exactly this way. See, e.g., LORI F. DAMROSCH ET AL., INTERNATIONAL LAW: CASES AND MATERIALS 56-57 (4th ed. 2001);
41. MARK W. JANIS & JOHN E. NOYES, INTERNATIONAL LAW: CASES AND COMMENTARY 20-21 (2d Ed. 2001)
42. [hereinafter JANIS & NOYES, INTERNATIONAL LAW] ("An ordinary starting point for international lawyers from most any part of the globe when thinking about the formal sources of international law is Article 38 of the International Court of Justice.");
43. HENRY J. STEINER ET AL., TRANSNATIONAL LEGAL PROBLEMS: MATERIALS AND TEXT 232 (4th ed. 1994) (quoting the statute and commenting that "[t] his list has significance not only for tribunals but also for officials or scholars pursuing the inquiries described above").
44. Statute of the International Court of Justice art. 38, 11, June 26, 1945, 59 Stat. 1055, 1060, T.S. No. 993 [hereinafter International Court of Justice Statute].
45. See, e.g., 1 LASSA OPPENHEIM, INTERNATIONAL LAW 25 (2d ed. 1912) ("Thus custom and treaties are the two exclusive sources of the Law of Nations.");
46. Jonathan I. Charney, Universal International Law, 87 AM. J. INT'L L. 529, 534 (1993) ("The principal traditional sources of international law are treaties and custom, supplemented by general principles of law.");
47. John K. Setear, Treaties, Custom, Iteration, and Public Choice, 5 CHI. J. INT'L L, 715, 716 (2005) ("Treaty and custom are generally identified as die most prominent sources of international law.").
48. International Court of Justice Statute, supra note 19, art. 38.
49. "International jurists speak of a custom, when a clear and continuous habit of doing certain actions has grown up under the aegis of the conviction that these actions are legally necessary or legally right," OPPENHEIM, supra note 20, at 22. "Whenever and as soon as a certain frequently adopted international conduct of States is considered legally necessary or legally right, the rule, which may be abstracted form such conduct, is a rule of customary International Law." Id. at 23.
50. Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 U.N.T.S. 331 (entered into force jan. 27, 1980).
51. See DAMROSCH ET AL, supra note 18, at 110 ("A third category of treaties-by far the largest in number-includes bilateral agreements and, for some purposes, agreements by three or four states."); see also U.N, OFFICE OF LEGAL AFFAIRS, TREATY SECTION, TREATY HANDBOOK § 5.5.2 (2001), available at http://untreaty.un.org/ola-internet/Assistance/ handbook_eng/ hbframeset.htm ("The majority of treaties registered pursuant to Article 102 of the Charter of the United Nations are bilateral treaties.").
52. Of course, treaties can designate their own procedures for more rapid amendment, as some environmental treaties have done. For example, the Montreal Protocol on Substances that Deplete the Ozone Layer art. 2, ¶ ¶ 9(c), 10(b), Sept. 19, 1987, S, TREATYDOC. NO. 100-10, 1522 U.N.T.S. 33, allows the Meeting of the Parties ("MOP"), operating by two-thirds majority vote, to modify the Protocol's regulatory requirements. See Richard B. Stewart, U.S. Administrative Law: A Model for Global Administrative Law?, 68 LAW & CONTEMP. PROBS. 63, 90 (2005). Anodier example is the Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71, which establishes a process for the regular recommendation and adoption of new measures and policies by the treaty parties.
53. See generally Christopher C. Joyner, Recommended Measures Under the Antarctic Treaty: Hardening Compliance with Soft International Law, 19 MICH. J. INT'L L. 401 (1998).
54. See infra Part II.C.
55. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 725-38 (2004); Filartiga v. Pena-Irala, 630 F.2d 876, 881-85 (2d Cir. 1980); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 1.4, 91 (June 27).
56. See, e.g., Anthony A. D'Amato, Trashing Customary International Law, 81 AM. J. INT'L L. 101, 101 (1987) (criticizing Nicar. v. U.S.);
57. Dean Rusk, A Comment on Filartiga v. Pena-Irala, 11 GA. J. INT'L & COMP. L. 311, 311 (1981) (criticizing Filartiga);
58. Arthur A. Weisburd, Customary International Law: The Problem of Treaties, 21 VAND. J. TRANSNAT'L L. 1, 26-29 (1988) (criticizing Filartiga).
59. See, e.g., Igartua-de la Rosa v. United States, 417 F.Sd 145, 176 (1st Cir. 2005) ("The ICCPR, the UDHR, the American Declaration, the ACHR and the IADC are all evidence of the emergence of a norm of customary international law with an independent and binding juridical status."); Beharry v. Reno, 183 F. Supp. 2d 584, 597-98 (E.D.N.Y. 2002).
60. For example, see the debate between Arthur Weisburd and Anthony D'Amato. See generally Weisburd, supra note 28; Anthony A. D'Amato, Custom and Treaty: A Response to Professor Arthur A. Weisburd, 21 VAND. J. TRANSNAT'L L. 459 (1988);
61. Arthur A. Weisburd, A Reply to Professor Anthony A. D'Amato, 21 VAND. J. TRANSNAT'L L. 473 (1988);
62. Anthony A. D'Amato, A Brief Rejoinder, 21 VAND. J. TRANSNAT'LL. 489 (1988).
63. See Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 AM. J. INT'L L. 757, 762 (2001).
64. DAMROSCH ET AL., supra note 18, at 108 ("Article 38 of the Statute of the International Court, in its list of sources according to which disputes are to be decided, gives first place to 'international conventions, whether general or particular, establishing rules expressly recognized by the contracting States.'"); JANIS & NOYES, INTERNATIONAL LAW, supra note 18, at 22 ("Partly because 'international conventions' are listed first in Article 38(1), the judges of the ICJ and other international lawyers have often given treaties pride of place among sources of international law."); STEINER ET AL., supra note 18, at 271 ("Whatever its purpose or character, die international agreement is generally recognized from the perspective of international law as an authoritative starting point for legal reasoning about any dispute to which it is relevant") ;
65. see also 1 HERSCH LAUTERPACHT, INTERNATIONAL LAW: COLLECTED PAPERS 86-87 (1970). As Lauterpacht explains: The rights and duties of States are determined in the first instance, by their agreement as expressed in treaties .... When a controversy arises between two or more States with regard to a matter regulated by a treaty, it is natural that the parties should invoke and that the adjudicating agency should apply, in the first instance, the provisions of the treaty in question. Id.
66. JANIS & NOYES, INTERNATIONAL LAW, supra note 18, at 22.
67. Antony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 HARV. INT'L L.J. 1, 2 (1999) ("Despite subsequent attempts to reformulate the foundations of international law, the fundamental positivist position, that states are the principle actors of international law and that they are bound only by that to which they have consented, continues to operate as the basic premise of the international legal system,");
68. Aaron Fichtelberg, Legal Rules and International Society, 15 EMORY INT'L L. REV. 157, 161 (2001) (reviewing ANTHONY CLARKE AREND, LEGAL RULES AND INTERNATIONAL SOCIETY (1999)) (discussing a "more-or-less traditional exposition of the positivist doctrine of sources: states create international law through their 'consent' (found in the practices of these states, coupled with opinio juris, as well as with the formulation of treaties)," and "the traditional sources of international law-treaties, custom, and 'general principles'"); see also SCHACHTER, supra note 17, at 35-36. Schachter states: The principal intellectual instrument in the last century for providing objective standards of legal validation has been the doctrine of sources. . . . The emphasis in this doctrine on criteria of law applied solely on the basis of observable 'positive' facts can be linked to those intellectual currents of the nineteenth century that extolled inductive science. Id.
69. See Charney, supra note 20, at 531 ("Perhaps the most popular theory is that states become bound to the international legal system on the basis of social contract, actual consent or tacit consent."); Duncan B. Hollis, Why State Consent Still Matters: Non-State Actors, Treaties, and the Changing Sources of International Law, 23 BERKELEY J, INT'L L. 137, 141 (2005) ("[M]ost international lawyers continue to explain how these rules constitute law by referring to the notion that 'the general consent of states creates rules of general application.'" (citing IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 4 (6th ed. 1995))).
70. See JANIS & NOYES, INTERNATIONAL LAW, supra note 18, at 22.
71. OPPENHEIM, supra note 20, at 22, Oppenheim states: The sources of International Law are therefore twofold-namely: (1) express consent, which is given when States conclude a treaty stipulating certain rules for the future international conduct of the parties; (2) tacit consent, which is given through States having adopted the custom of submitting to certain rules of international conduct. Id.
72. Id.; RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 102 cmt. d (1987). The Restatement provides: Although customary law may be built by the acquiescence as well as by the actions of states (Comment b) and become generally binding on all states, in principle a state that indicates its dissent from a practice while the law is still in the process of development is not bound by that rule even after it matures. Id.; see also Chantai Thomas, Customary International Law and State Taxation of Corporate Income: The Case for the Separate Accounting Method, 14 BERKELEY J. INT'L L. 99, 114 (1996) (identifying as a characteristic of customary international law that "[t]he international law must be consistently practiced by nations whose interests it clearly affects, with the tacit consent or acquiescence by those nations whose interests it does not").
73. OPPENHEIM, supra note 20, at 22.
74. See, e.g., Cornelius F. Murphy, Jr., The Grotian Vision of World Order, 76 AM. J. INT'L L. 477, 482 (1982);
75. Geoffrey R. Watson, The Death of Treaty, 55 OHIO ST. L.J. 781, 786 (1994).
76. "[W] hen many at different times, and in different places, affirm the same thing as certain, that ought to refer to a universal cause; and this cause . . . must be either a correct conclusion drawn from the principles of nature, or common consent." 2 HUGO GROTIUS, DE JURE BELLI AC PAUIS LIBRI TRES 23-24 ([aines Brown Scott ed., Francis W. Kelsey et al. trans., Clarendon Press 1925) (1625).
77. Adding to the confusion, "Grotius often speaks of the law of nature and the law of nations as if the two impose identical obligations on states-as if, notwithstanding their different sources, the law of nature and the law of nations speak to states with one voice." INTERNATIONAL RULES: APPROACHES FROM INTERNATIONAL LAW AND INTERNATIONAL RELATIONS 36 (Robert J. Beck et al. eds., 1996).
78. According to Grotius, the law of nature could be proven by either of two means: a priori, "by demonstrating the necessary agreement or disagreement of anything with a rational and social nature," see GROTIUS, supra note 41, at 42, and a posteriori (as a matter of probability if not absolute certainty), by showing what is believed to be the law of nature "among all nations, or among all those that are more advanced in civilization." Id.; see also Benedict Kingsbury, A Grotian Tradition of Theory and Practice?: Grotius, Law, and Moral Skepticism in the Thought ofHedley Bull, 17 QuiNNIPIACL. REV. 3, 22-23 (1997)
79. (quoting HUGO GROTIUS, DEJURE BELLI AC PACIS l.i. 12 (n.p. 1625)).
80. Cf. David J. Bederman, Reception of the Classical Tradition in International Law: Grotius'De Jure Belli ac Pacis, 10 EMORY INT'L L. REV. 1, 8 n.26 (1996) ("Grotius' consideration of universality and right reason tracks our modern notions of the formation of customary international law, including the requirements of a general practice and opinio juris (a sense that a practice is carried out because of legal obligation).").
81. ARTHUR NUSSBAUM, A CONCISE HISTORY OF THE LAW OF NATIONS 156 (rev. ed. 1954).
82. Jianmeng Shen, The Relativity and Historical Perspective of the Golden Age of International Law, 6 INT'L LEGAL THEORY 15, 20 (2000). Although natural law does play a prominent role, Vattel has often been described as a nascent positivist because of his differentiation of the law of nations and the law of nature. See Anghie, supra note 34, at 12.
83. 4 WILLIAM BLACKSTONE, COMMENTARIES 66-67 (Univ. of Chic. Press 1979) (1765-1769).
84. Interestingly, in Triquet v. Bath, a 1764 decision of William Murray, Lord Mansfield, Blackstone, appearing as an attorney in the case, argued on the basis of general customary law of nations, See MARK WESTON JANIS, THE AMERICAN TRADITION OF INTERNATIONAL LAW 51-52 (2004) [hereinafter, JANIS, AMERICAN TRADITION].
85. James Kent held similar views: The law of nations is a complex system, composed of various ingredients. It consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality, and to the relation and conduct of nations; of a collection of usages and customs, the growth of civilization and commerce, and a code of conventional or positive law. Id. at 28 (quoting 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW 2-3 (New York, Halstead 1832) (1826-1830)).
86. See MICHAEL BYERS, CUSTOM, POWER AND THE POWER OF RULES 107 (1999) ("Treaty rules ... are based on the general customary rule of pacta sunt servanda, which requires that treaty obligations be upheld in good faith.").
87. Anghie, supra note 34, at 10.
88. Id. at 18.
89. Id. at 14.
90. Id.
91. JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 9 (David Campbell & Philip Thomas eds., Ashgate 1998) (1832); see also id. at 101 (arguing that "[l]aws properly so called are a species of commands" and "every law properly so called flows from a determinate source").
92. "[T] he law obtaining between nations is not positive law: for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author." Id. at 152.
93. Id. at 10.
94. Martti Koskenniemi identifies another influential theoretical challenge in Friedrich Carl Von Savigny's historical school of law, which criticized the static nature of international law derived from immutable natural reason. To the extent international law was derived from natural reason, its rules could not change-the correct rules have always been correct and always will be correct. Instead, Savigny argued that law should be seen as an organic and evolving outgrowth of the popular consciousness. MARTTI KOSKENNIEMI, THE GENTLE CIVITLIZER OF NATIONS 43-47 (2002). According to Koskenniemi, it was Savigny's arguments that inspired Johann Caspar Bluntschli to write his international law code in 1867. See id. At the same time, Savigny's historical school heavily influenced the Institut de droit international, which in 1873 described its goal as to be "the legal conscience of the civilized world." See id. at 41, 47,
95. See JANIS, AMERICAN TRADITION, supra note 48, at 119 (citing NUSSBAUM, supra note 45, at 196-97, and estimating that ten to sixteen thousand treaties were ratified during that period); Shen, supra note 46, at 25 (citing NUSSBAUM, supra note 45, at 196-97, for the estimate that '"about sixteen thousand treaties were concluded between [1815] and 1924'"); see also OPPENHEIM, supra note 20, at 23 ("Treaties are the second source of International Law, and a source which has of late become of the greatest importance."),
96. See Shen, supra note 46, at 25-26.
97. See id.
98. JANIS, AMERICAN TRADITION, supra note 48, at 119;
99. KOSKENNIEMI, supra note 58, at 42-47.
100. JANIS, AMERICAN TRADITION, supra note 48, at 118-19.
101. See Shen, supra note 46, at 25-26.
102. Other factors contributed to the positivist shift as well. See generally Anghie, supra note 34 (noting the influence that colonialism and the interactions between western and nonwestern powers had on the rise of positivism in international law).
103. Id. at 2.
104. See LOUIS HENKIN ET AL., INTERNATIONAL LAW, at xxv (3d ed. 1993) ("The rise of positivism in Western political and legal theory, especially from the latter part of the 18th century to the early part of the 20th century, corresponds to the steady rise of the national state and its increasingly absolute claims to legal and political supremacy.").
105. OPPENHEIM, supra note 20, at 4.
106. Id. at 21.
107. Id. at 22 (internal citation omitted).
108. Hedley Bull, Tlie Grotian Conception of International Society, in DIPLOMATIC INVESTIGATIONS 51 (Herbert Butterfield Sc Martin Wight eds., 1966), reprinted in HEDLEY BULL ON INTERNATIONAL SOCIETY95,111 (Kai Alderson Sc Andrew Hurrell eds., 2000).
109. See, e.g., Gabriel M. Wilner, Filartiga v. Pena-Irala: Comments on Sources of Human Rights Law and Means of Redress for Violations of Human Rights, 11 GA. J. INT'L & COMP. L. 317, 320 (1981) ("The notion that all individuals have rights independent of what may be granted them under national law, including their own national law, adds a dimension to international law unknown to it when the sources of the law of nations were set forth in the nineteenth and twentieth centuries.").
110. For examples of each school of thought, see generally CHAYES Sc CHAYES, supra note 10 (discussing transnational legal process); FRANCK, THE POWER OF LEGITIMACY, supra note 15 (discussing international law as legitimacy) ;
111. Anne-Marie Burley, Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine, 92 COLUM. L. REV. 1907 (1992) (discussing liberal international law theory);
112. Koh, Bringing International Law Home, supra note 7 (discussing transnational legal process);
113. Myres S. McDougal & W. Michael Reisman, The Prescribing Function in the World Constitutive Process: How International Law Is Made, in INTERNATIONAL LAW ESSAYS 355, 377 (Myres S. McDougal & W. Michael Reisman eds., 1981) (discussing the New Haven policy school);
114. W. Michael Reisman, The View from the New Haven School of International Law, 86 AM.SOC'Y INT'L L. PROC. 118 (1992) (same).
115. See Hollis, supra note 35, at 3-5; see also Onuma Yasuaki, International Law in and with International Politics: The Functions of International Law in International Society, 14 EUR. J. INT'L L. 105, 110 (2003).
116. OPPENHEIM, supra note 20, at 12, 16-18.
117. Id. at 32-34.
118. Accordingly, whether any particular state currently "consents" in the manner presumed by Oppenheim's theory can only be a matter of speculation. Some new states may very well see the international system as a system of sovereign equality that works to their advantage. Others may see it as imperialism in different clothes-a regime they tolerate, but hardly accept. Others still, usually "rogue states," have chosen simply to disregard the system altogether.
119. For former colonies, for example, international law may be viewed as a tool for vindicating their rights as equal members of the system or as a tool of subjugation that forces them to follow rules written by their one-time occupiers. See, e.g., B. S. Chimni, Third World Approaches to International Law: A Manifesto, in THE THIRD WORLD AND INTERNATIONAL ORDER: LAW, POLITICS AND GLOBALIZATION 72 (Antony Anghie et al. eds., 2003) ("A growing assemblage of international laws, institutions and practices coalesce to erode the independence of third world countries in favor of transnational capital and powerful States.").
120. See, e.g., Wilner, supra note 72, at 318 ("Since World War II, however, the direct right of individuals to the protection of their lives and of other civil and political rights has slowly gained recognition, independent of the right of redress by states of which they are nationals.").
121. A high percentage of states have ratified these treaties. As of July 7, 2003, 99% of states had ratified the Convention on the Rights of the Child, 91% had ratified the Convention on the Political Rights of Women, 78% had ratified the ICCPR, and 70% had ratified the Genocide Convention and Convention Against Torture. See GOLDSMITH Sc POSNER, supra note 1, at 108 (citing Office of the U.N. High Comm'r for Human Rights, Status of Ratifications of the Principal International Human Rights Treaties, available at http://www.ohchr.org (updated June 9, 2004)). Other widely ratified human rights treaties include the International Covenant on the Elimination of All Forms of Racial Discrimination, ratified by 88% of states, and the International Covenant on Economic, Social, and Cultural Rights, ratified by 77% of states. Id.
122. See Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L.J. 1935, 1938 (2002) [hereinafter Hathaway, Do Human Rights Treaties] ("[U]nlike in the case of trade agreements, the costs of retaliatory noncompliance are low to nonexistent, because a nation's actions against its own citizens do not direcdy threaten or harm other states.").
123. As Justice Schwebel explained: The General Assembly has no authority to enact international law.... If a resolution purports to be declaratory of international law, if it is adopted unanimously (or virtually so, qualitatively as well as quantitively) or by consensus, and if it corresponds to State practice, it may be declaratory of international law. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J, 226, 319 (July 18) (dissenting opinion of Justice Schwebel).
124. See, e.g., Convention on the Rights of the Child, G.A. Res. 44/25, 61st plen. mtg., U.N. Doc, A/RES/44/25 (Nov. 20, 1989) (not yet ratified by the United States). But see Beharry v. Reno, 183 F. Supp. 2d 584, 600 (E.D.N.Y. 2002) ("While the [Convention on the Rights of the Child ("CRC")] is relatively new, it contains many provisions codifying longstanding legal norms. . . . These provisions . . . are not so novel as to be considered outside the bounds of what is customary. Similar doctrines have long been a part of our law."), rev'd sub nom., Beharry v. Ashcroft, 329 F.Sd 51, 53 (2d Cir. 2003). See also International Convention on Economic, Social and Cultural Rights, opened for signature Dec. 19, 1966, 999 U.N.T.S. 3 (not yet ratified by the United States, among others); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, Annex, U.N. Doc. A/45/158/Annex (Dec. 18, 1990) (in force, but not yet ratified by the United States, United Kingdom, France, and other major Western industrial powers). In fact, only the 1949 Geneva Conventions on the protection of civilians and prisoners during war have been ratified by all states, See Nauru Signs Up to Geneva Conventions, RADIO N.Z. INT'L, Aug. 22, 2006, available at http://www.rnzi.com/pages/news.php?op=read&cid=26274 ("The [International Committee of the Red Cross] says the Geneva Conventions have 194 signatories, marking for the first time in modern history that an international treaty has achieved universal acceptance.").
125. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, 1971 I.C.J. 16, 47 (June 21) ("The rules laid down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach (adopted without a dissenting vote) may in many respects be considered as a codification of existing customary law on the subject."); see also Avero Belgium Ins. v. Am. Airlines, Inc., 423 F.3d 73, 79 n.8 (2d Cir. 2005) ("[T]he United States has never ratified the Convention. Accordingly, the Vienna Convention is not a primary source of customary international law, but rather one of the secondary sources 'summarizing international law.'" (internal citations omitted)).
126. See North Sea Continental Shelf Cases (F.R.D. v. Den.), 1969 I.C.J. 2, 39 (Feb. 20) (explaining that Article 1 to 3 of the 1958 Convention on the Continental Shelf "were then regarded as reflecting, or as crystallizing, received or at least emergent rules of customary international law relative to the continental shelf); see also Kane v. Winn, 319 F. Supp. 2d 162, 199 (D. Mass. 2004) ("Regional conventions and treaties mirror international developments, and further confirm the crystallization of customary international law.").
127. An unratified treaty could: [G]enerate[] a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectiy possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. North Sea Continental Shelf Cases, 1969 I.C.J. at 41; see also Filartiga v. Pena-Irala, 630 F.2d 876, 883 (2d Cir. 1980) ("[I]t has been observed that the Universal Declaration of Human Rights 'no longer fits into the dichotomy of "binding treaty" against "non-binding pronouncement," but is rather an authoritative statement of the international community.'" (internal citation omitted)).
128. Jeremy Waldron, F.W. Guest Memorial Lecture, The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus, 11 OTAGO L. REV. 161, 167 (2005).
129. See JANIS & NOYES, INTERNATIONAL LAW, supra note 18, at 49.
130. See DAMROSCH ET AL., supra note 18, at 538-39.
131. See Michael J. Glennon, How International Rules Die, 93 GEO. LJ. 939, 957 (2005) ("International law scholars have long recognized that outdated treaty rules can also lose their bite, although the issue is addressed in the major works only in passing."); see also Concerning the Delimitation of the Continental Shelf Between the
132. Rebus sic stantibus, originally a customary international law rule, has since been codified in the Vienna Convention on the Law of Treaties, Under Article 62 of the Convention, a fundamental change of circumstances may be "invoked as a ground for terminating or withdrawing from the treaty" if "(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty." Vienna Convention on the Law of Treaties, supranote 23, art. 62,
133. Waldron points out a particularly good example of how Turkey, in negotiating the 1922-1923 Treaty of Lausanne, successfully convinced the British, French, Italians, Japanese, and Americans that the fundamental change in the nature of the state generally and the Turkish state specifically had vitiated the old regime of capitulations. Waldron, supra note 87, at 171-72.
134. See Glennon, supra note 90, at 957-58; see also ATHANASSIOS VAMVOUKOS, TERMINATION OF TREATIES IN INTERNATIONAL LAW: THE DOCTRINES OF REBUS SIC STANTIBUS AND DESUETUDE 219 (1985) ("Even those jurists who have discussed the implications of desuetude have themselves been puzzled as how to relate it to any objective rule of law,").
135. See, e.g., Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7 (Sept. 25) (rejecting excuse); Fisheries Jurisdiction (U.K. v. Ice.), 1973 I.C.J. 3 (Feb. 2) (same); see also Detlev F. Vagts, Rebus Revisited: Changed Circumstances in Treaty Law, 43 COLUM. J. TRANSNAT'L L. 459, 475 (2005) ("What can be said is that rebus sic stantibus? will not avail unless the change of circumstances is clearly a drastic change from the circumstances anticipated by the parties."), Among the obstacles to the successful invocation of rebus sic stantibus, Article 62 states that fundamental change may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary; or (b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. Vienna Convention on the Law of Treaties, supra note 23, art. 62. These conditions, in particular the requirement that "the fundamental change is [not] the result of a breach by the party invoking it," are high hurdles to jump. See Waldron, supra note 87, at 17.
136. Glennon, supra note 90, at 957-58 (citing SHABTAI ROSENNE, DEVELOPMENTS IN THE LAW OF TREATIES, 1945-1986, at 9 (1989)).
137. See id. at 958 & n.95 ("'[R]etention of that article' could have 'opened the way to controlled and orderly flexibility in the evolution both of the law in general, and of specific rights and duties of States in particular.'" (quoting ROSENNE, supra note 95, at 9)). In the end, "[t]he deletion 'may be regretted.'" Id. at 958 (quoting ROSENNE, supra note 95, at 9).
138. See sources cited supra note 94. In the most well-known of these cases, the ICJ refused to absolve post-communist Hungary of its duties under a Soviet-era treaty with the no-longerextant Czechoslovakia to build dams on the Danube river. See generally Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7.
139. U.N. Charter art. 2, para. 4.
140. This example is particularly useful because it demonstrates the difficulty of amending the treaty through a new one. Agreement by all the world's states to a new U.N. Charter provision is difficult to imagine.
141. See Glennon, supra note 90, at 958-59 (citing Thomas M. Franck, Some Observations on the ICJ's Procedural and Substantive Innovations, 81 AM. J. INT'L L. 116, 119 (1987),
142. and Thomas M. Franck, Who Killed Article 2(4)?, 64 AM. J. INT'L L. 809, 809 (1970)).
143. See id. at 969-70. See generally Jonathan I. Charney, Editorial Comment, NATO's Kosovo Intervention: Anticipatory Humanitarian Intervention in Kosovo, 93 AM. J. INT'L L. 834, 836 (1999) (developing a test for when humanitarian intervention would be appropriate);
144. W. Michael Reisman, Editorial Comment, NATO's Kosovo Intervention: Kosovo's Antinomies, 93 AM. J. INT'L L. 860 (1999) (discussing the Kosovo intervention in the context of Article 2(4));
145. Ruth Wedgwood, Editorial Comment, NATO's Kosovo Intervention: NATO's Campaign in Yugoslavia, 93 AM. J. INT'L L. 828 (1999) (discussing the humanitarian role of the Kosovo intervention and its implications for the United Nations).
146. But see Louis Henkin, Editorial Comment, NATO's Kosovo Intervention: Kosovo and the Law of "Humanitarian Intervention, "93 AM. J. INT'L L. 824, 826 (1999) (arguing that intervention, even humanitarian intervention, is and should remain unlawful).
147. See Mary Ellen O'Connell, Lawful Self-Defense to Terrorism, 63 U. PITT. L. REV. 889, 891 n.ll (2002).
148. See generally Glennon, supra note 90 (developing a theory of treaty desuetude); Waldron, supra note 87 (considering the effect that fundamental changes in the international system should have on existing treaty rules).
149. See Glennon, supra note 90, at 957; Waldron, supra note 87, at 167-69.
150. See generally Roberts, supra note 31 (discussing the literature on custom in international law).
151. Hathaway uses "universal" to refer to treaties open to ratification by all states. See Hathaway, Do Human Rights Treaties, supra note 81, at 1992.
152. Id.
153. Id. at 1994.
154. Id.
155. Id. at 1995.
156. Haulaway's study is not beyond criticism. Ryan Goodman and Derek Jinks have argued that "Haulaway's project is in important respects flawed," identifying "(1) defects in Haulaway's research design; (2) structural deficiencies in her theoretical model; and (S) troubling implications of her policy analysis." Ryan Goodman & Derek Jinks, Measuring the Effects of Human Rights Treaties, 14 EUR. J. INT'L L. 171, 172 (2003). Among other things, they raise concerns over Hathaway's choice of data, in particular, the mechanisms used for measuring human rights violations and how some improvements in human rights practices, such as increasing free speech and accountability, may make negative human rights practices more visible. See id. at 176-78. One might even go further and wonder whether complex questions like human rights practices are really capable of measurement. This Article reaches no conclusion regarding the accuracy of Hathaway's study. What is important here is that these studies seem to support the intuition that human rights treaties are widely disregarded and that these studies provide fodder for arguments about international law's ineffectiveness.
157. See GOLDSMITH & POSNER, supra note 1, at 120 (citing Linda Camp Keith, The United Nations International Covenant on Civil and Political Rights: Does it Make a Difference in Human Rights Behavior?, 36 J. PEACE RES. 95 (1999)).
158. Although they do not dismiss these treaties entirely, their discussion takes a highly skeptical tone. See id. at 119.
159. Id. at 121. Goldsmith and Posner's book has spawned a veritable cottage industry of articles questioning their methodology and conclusion. See, e.g., Symposium, The Limits of International Law, 34 GA. J. INT'L & COMP. L. 253 (2006) (including articles by Kenneth Anderson, Daniel Bodansky, Allen Buchanan, David M. Golove, Andrew T. Guzman, Margaret E. McGuiness, Peter J. Spiro, and Kal Raustiala). This Article does not engage this debate. The important point here is how Goldsmith and Posner use empirical data like Hathaway's as proof of their conclusions about the thinness of human rights law.
160. See GOLDSMITH & POSNER, supra note 1, at 120.
161. Id.
162. Id.
163. For example, Algeria attached three RUDs, Syria attached one, and a long list of states, including Belarus, the Democratic Republic of the Congo, Sudan, and Uzbekistan, attached zero RUDs, See id. at 129.
164. Id. at 128. This is consistent with Hathaway's findings that "[h]uman rights and environmental treaties gain adherents at a much faster pace than do comparable trade treaties." See Hathaway, An Integrated Theory, supra note 4, at 515.
165. See Hathaway, An Integrated Theory, supra note 4, at 474 ("In short, the theory not only provides a comprehensive vision of the potential and the limits of international law; it also gives rise to unique (and often counterintuitive) predictions that are consistent with the available evidence.").
166. Citing a study by Beth Simmons on the International Monetary Fund, Hathaway explains that economic treaties appear to follow a different pattern. In those cases, enforcement is more effective, but so too are the benefits of compliance higher. As a result, states that accede to those treaties are more likely to comply. See id. at 519 (citing Beth Simmons, International Law and State Behavior: Commitment and Compliance in International Monetary Affairs, 94 AM. POL. SCI. REV. 819, 822-27 (2000)).
167. In this case, Hathaway examined statistics related to the Vienna Convention on the Protection of Ozone Layer of 1985 and the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer. See id. at 515-16.
168. Id. at 474 ("[H]olding other factors constant, countries with very poor human rights records can be as likely or even more likely to ratify treaties as countries with better records, but that unlike those with better records, they are unlikely to comply with those commitments-which is in fact the pattern found.").
169. Id. at 518-19.
170. Hathaway, An Integrated Theory, supra note 4, at 516.
171. As Hathaway explains: Yet in fact these countries often have stronger incentives (and weaker disincentives) to join human rights treaties than states with better records-first, because such countries usually have weak rule of law and thus create limited opportunities for domestic legal enforcement; second, because human rights treaties usually lack transnational legal enforcement mechanisms, such as supranational enforcement or credible threats of state-to-state retaliation; and finally, because such countries, by displaying their (sometimes insincere) commitment to human rights, increase their standing among other nations, international bodies, private investors, domestic actors, and others and thereby obtain significant collateral benefits. Id. at 474.
172. Id. at 509-10.
173. Glennon, supra note 90, at 956.
174. Roberts, supra note 31, at 762 ("Laws must bear some relation to practice if they are to regulate conduct effectively, because laws that set unrealistic standards are likely to be disobeyed and ultimately forgotten. This consideration particularly applies to decentralized systems of law, such as international law, where traditional enforcement mechanisms are unavailable or underdeveloped."); see also Hathaway, An Integrated Theory, supra note 4, at 469.
175. Glennon, supra note 90, at 956.
176. See supra Part II.D.
177. Onuma explains: Although validity (whether law must be observed), not efficacy (whether law is actually observed), should be the primary concern for lawyers, even a proponent of the pure theory of law admits that the efficacy of law constitutes a condition of the validity of law. If international law were not observed by states at all, the very validity of international law would be lost. Onuma, supra note 74, at 114 (internal citations omitted).
178. Although these theories employ a variety of methodologies, many of them seem to draw on me insights developed by the Constructivist school of international relations theory. Although these theories generally accept that states act according to their perceived interests, they argue that those interests are shaped by international institutions and norms and by interactions between international actors. The goal of these theories is to better understand those processes of interest construction.
179. CHAYES & CHAYES, supra note 10, passim.
180. Guzman, A Compliance-Based Theory, supra note 6, passim. See generally Andrew T. Guzman, Saving Customary International Law, 27 MICH. J. INT'L L. 115 (2005)
181. [hereinafter Guzman, Saving Customary International Law].
182. Goodman & Jinks, Socialization and International Human Rights Law, supra note 10, passim.
183. Koh, Bringing International Law Home, supra note 7, at 632;
184. Koh, Why Do Nations Obey?, supra note 14, passim.
185. FRANCK, THE POWER OF LEGITIMACY, supra note 15, passim; Franck, Legitimacy, supra note 7, at 705.
186. See Franck, Legitimacy, supra note 7, at 705; Koh, Bringing International Law Home, supra note 7, at 626;
187. see also FRANCK, THE POWER OF LEGITIMACY, supra note 15, at 16.
188. In studying which laws are complied with and when, it may be important to have a definition of the "law" that is separate and unrelated to one's theories about compliance. Mixing the two might predetermine the study: if law is defined in part by what rules are complied with, a study of compliance will show that laws tend to be obeyed. The goal of this Article, however, is different. This Article does not seek to predict which rules will be followed but, instead, seeks to identify which rules are treated as law in the international system. Theories of compliance should be quite helpful in answering this question of social fact.
189. Koh, Bringing International Law Home, supranote 7, at 626.
190. Id.
191. Id. at 625-27. Instead of focusing exclusively on the issues of "horizontal jawboning" at the state-to-state level as traditional international legal process theories do, a transnational legal process approach focuses more broadly upon the mechanisms of "vertical domestication," whereby international law norms "trickle down" and become incorporated into domestic legal systems. Id.
192. See id. at 627-33. In particular, Koh uses the example of seatbelt rules and the complicated process whereby buckling a seatbelt became an internalized default rule. See id.
193. Id. at 626.
194. Koh, Bringing International Law Home, supra note 7, at 647. Koh suggests such examples as "Eleanor Roosevelt, Jesse Jackson, the Dalai Lama, Daw Aung San Suu Kyi, and Princess Diana." Id. at 648.
195. Id, at 642; Koh, Why Do Nations Obey?, supra note 14, at 2646.
196. Koh, Bringing International Law Home, supra note 7, at 655; see also id. at 642 ("Repeated participation in the transnational legal process is thus a constructivist activity, which helps to reconstruct the national interests of the participating nations.").
197. Id. at 643.
198. See Goodman & Jinks, Socialization and International Human Rights Law, supra note 10, at 626 (describing "behavioral changes through pressures to assimilate-some imposed by other actors and some imposed by the self).
199. See id.; see also Guzman, Saving Customary International Law, supra note 135, at 124-27 (explaining how customary international law can result from a belief that non-compliance with a rule will be met by sanction, including harm to a state's reputation).
200. See Koh, Bringing International Law Home, supra note 7, at 664.
201. Id.
202. The ATCA, an obscure 1789 statute, grants the U.S. district courts "original 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." 28 U.S.C. § 1350 (2000).
203. See Geneva Convention Relative to the Treatment of Prisoners of War, art. 17, opened for signature Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 ("No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever."); see also Common Article III to all four Geneva Conventions, Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, opened for signature Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 2871; Geneva Convention Relative to the Treatment of Prisoners of War art. 3, opened for signature Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 3, opened for signature Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 3, opened for signature Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31.
204. See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment arts. 2(1), 4(1), adopted Dec. 10, 1984, S. TREATY DOC. NO. 100-20 (1988), 1465 U.N.T.S. 85; International Covenant on Civil and Political Rights art. 7, adopted Dec. 16, 1966, S. EXEC. DOC. No. E, 95-2 (1978), 999 U.N.T.S. 171 [hereinafter ICCPR] ("No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment").
205. Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980).
206. The use of U.N. declarations and unratified treaties was itself revolutionary and controversial. See Rusk, supra note 28, at 311 (criticizing their use).
207. Filartiga, 630 F.2d at 884.
208. Id. at 887.
209. C. Donald Johnson, Jr., Filartiga v. Pena-Irala: A Contribution to the Development of Customary International Law by a Domestic Court, 11 GA. J. INT'L & COMP. L. 335, 335 (1981).
210. Louis B. Sohn, Torture as a Violation of the Law of Nations, 11 GA, J. INT'L & COMP. L. 307, 307 (1981).
211. Josef Rohlik, Filartiga v. Pena-Irala: International Justice in a Modern American Court?, 11 GA. J. INT'L & COMP. L, 325, 330 (1981).
212. Sohn, supra note 162, at 307.
213. Johnson, supra note 161, at 340-41. At least one commentator, skeptical of the Second Circuit's determination that torture was a violation of international law, wrote: The decision of the Second Circuit Court of Appeals in the Filartiga case probably will not stand as a landmark case with far-reaching implications for the development of international law. It is more likely to find its place as a legal oddity picked up in "but see..." footnotes by diligent scholars. Rusk, supra note 28, at 311.
214. Ryan Goodman & Derek P. Jinks, Filartiga 'J Strong Footing: International Human Rights and the Federal Common Law, 66 FORDHAM L. REV. 463, 466 (1997).
215. Id.
216. Id.
217. See, e.g., Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir. 1992) ("[I]t would be unthinkable to conclude other than that acts of official torture violate customary international law."); Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 942 (D.C. Cir. 1988) (noting the law of nations prohibits official torture); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1541 (N.D. Cal. 1987) (finding that "official torture constitutes a cognizable violation of the law of nations"). Although the three concurring judges in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), rejected the ATCA claim, two of the three wrote that official torture was a violation of international law. See id. at 777, 788 (Edwards, J., concurring); id. at 819-20 (Bork,J., concurring). Interestingly, the number of courts citing torture as a violation of international law and jus cogens norm has increased in each decade since Filartiga was decided. As a quick illustration, an October 2007 Lexis search in the database "Federal & State Cases, Combined" using the search-terms: "(torture and 'jus cogens') or (torture w/5 'violation of international law')" yields four cases for the first decade following Filartiga, fifty-four cases for the decade after that, and fifty-eight cases for the little more than half decade since 2001. Similarly constructed searches yield similar proportions.
218. See Koh, Bringing International Law Home, supra note 7, at 665 (noting the Senate ratified the convention in 1990).
219. The ICCPR was originally submitted to the Senate for ratification in 1978. See David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 YALE J. INT'L L. 129, 132 (1999).
220. Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (codified at 28 U.S.C. § 1350 (2000)). Passed as an amendment to the ATCA, the TVPA was meant both to fulfill the United States' obligations under the Convention Against Torture and to codify the Second Circuit's decision in Filartiga. Goodman & Jinks, supra note 166, at 513; see also Koh, Bringing International Law Home, supra note 7, at 665-66 (explaining that the TVPA "was designed specifically to supplement and complement the pre-existing scope of the ATCA").
221. Rachael E. Schwartz, "And Tomorrow?" The Torture Victim Protection Act, 11 ARIZ. J. INT'L & COMP. L. 271, 283 (1994) (citing H.R. REP. NO. 102-367, at 4 (1991) and S, REP. NO. 102-249, at 4-5 (1991)).
222. id.
223. Some scholars still questioned whether the ATCA could provide a federal court with jurisdiction over these types of claims. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815, 821 (1997);
224. A. M. Weisburd, State Courts, Federal Courts, and International Cases, 20YALE J. INT'L L. 1, 8-12 (1995).
225. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
226. See David D. Caron & Brad R. Roth, Scope of Alien Tort Statute - Arbitrary Arrest and Detention as Violations of Custom, 98 AM. J. INT'L L. 798, 803 (2004) ("The precise consequences of Sosa for future Filartiga litigation are unclear.");
227. see also Harlan Grant Cohen, Supremacy and Diplomaty: The International Law of the U.S. Supreme Court, 24 BERKELEY J. INT'L L. 273, 281-90 (2006).
228. Sosa, 542 U.S. at 731 ("The position we take today has been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filartiga v. Pena-Irala, 630 F.2d 876 (CA2 1980) ...."). The Court further noted: This limit upon judicial recognition is generally consistent with the reasoning of many of the courts and judges who faced the issue before it reached this Court. [citing Filartiga, supra, at 890] ("[F]or purposes of civil liability, the torturer has become-like the pirate and slave trader before him - hostis humani generis, an enemy of all mankind") .... Id. at 732; see also id. at 762 (Breyer, J., concurring) (suggesting that the ATCA be limited to a "subset [that] includes torture, genocide, crimes against humanity, and war crimes," for which universal jurisdiction has been established).
229. Press Release, Dianne Feinstein, Senator (D. Cal.), Senator Feinstein Seeks to Clarify Adjudication of Foreign Lawsuits in U.S. Federal Court (Oct. 18, 2005), available at http://feinstein.senate.gov/05releases/r- alientort.htm. Senator Feinstein stated: Right now, courts are essentially adrift in terms of being able to pinpoint the underlying meaning, scope and intent of the Alien Tort Statute. I hope this legislation will settle the questions that surround this 200-year-old law by providing a reasonable legal means that both plaintiffs and defendants can rely on to litigate their differences. Id.
230. Id. ("Specifically, the measure would:... [c]odify international claims under the Alien Tort law to include genocide, torture, slavery and slave trade, extrajudicial killing, and piracy; [and] [e]xpand on existing statutory law, the Torture Victim Protection Act . . . .").
231. Koh, Bringing International Law Home, supra note 7, at 665.
232. See supra notes 172-74 and accompanying text.
233. See Sosa, 542 U.S. at 731 ("Congress, however, has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legislation supplementing the judicial determination in some detail.").
234. Koh, Bringing International Law Home, supra note 7, at 642-43.
235. See, e.g., Phillip Carter, The Road to Abu Ghraib, WASH. MONTHLY, Nov. 1, 2004, at 20.
236. See Daniel Klaidman et al., Palace Revolt, NEWSWEEK, Feb. 6, 2006, at 34;
237. see also Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 COLUM. L. REV. 1681, 1703-08 (2005).
238. See John Barry et al., The Roots of Torture, NEWSWEEK, May 24, 2004, at 30-32.
239. See Koh, Bringing International Law Home, supra note 7, at 650-51. As Koh explains: To avoid such cascading violations, domestic bureaucracies develop "institutional habits" that lead them into default patterns of compliance. These patterns act like riverbeds that channel routine governmental conduct along law-compliant pathways. When a nation deviates from that pattern of presumptive compliance, frictions are created, not just in the particular issue area in which the first deviation occurs, but in the whole spectrum of interlinked issue areas. To avoid such frictions in its continuing interactions, a nation's bureaucracies gain powerful institutional incentives to press their governmental leaders to adhere generally to policies of compliance over policies of violation. Id. at 654-55 (internal citations omitted); see also Barry et al., supra note 187, at 32 ("While the CIA could do pretty much what it liked . . . the Pentagon was bound by the Uniform Code of Military Justice. Military officers were routinely trained to observe the Geneva Conventions."). For a recent description of the battle against torture within the U.S. military, see Jane Mayer, How an Internal Effott to Ban the Abuse and Torture of Detainees was Thwarted, NEW YORKER, Feb. 27, 2006, at 32.
240. The State Department's Chief Legal Advisor William Howard Taft IV responded quickly, describing the OLC memo as "seriously flawed" and its reasoning as "incorrect as well as incomplete." R. Jeffrey Smith, Lawyer for State Dept. Disputed Detainee Memo; Military Legal Advisers Also Questioned Tactics, WASH. POST, June 24, 2004, at A7. Secretary of State Colin Powell "'requested that [the President] reconsider that decision,'" arguing that declaring the Geneva Conventions nonapplicable "'will reverse over a century of U.S. policy and practice" and carry "'a high cost in terms of negative international reaction.'" Barry et al., supra note 187, at 28-29 (quoting memos from Attorney General Alberto Gonzales and Secreatry of State Colin Powell to President George W. Bush).
241. Barry et al., supra note 187, at 28-29; see also Smith, supra note 189, at A7.
242. See Barry et al., supra note 187, at 32.
243. Klaidman et al., supra note 186, at 34.
244. See id.
245. See, e.g., Stuart Taylor Jr., The Torture Memos: Putting the President Above the Law, 36 NAT'L J. 1835, 1835 (2004);
246. Rebecca Carr, Ashcroft, Under Fire, Says Torture Isn't Policy, ATLANTA J.CONST., June 9, 2004, at 1A;
247. What on Earth Were They Thinking?: The Bush Administration and the Torture Memo, ECONOMIST, June 19, 2004, at 31.
248. Stephen Gillers, Tortured Reasoning, AM. LAW., July 2004, at 65-66;
249. Adam Liptak, How Far Can a Government Lawyer Go?, N.Y. TIMES, June 27, 2004, § 4, at 3.
250. Eric Schmitt, Cheney Working to Block Legislation on Detainees, N.Y. TIMES, July 24, 2005, § 1, at 23.
251. Eric Schmitt, President Backs McCain on Abuse, N.Y. TIMES, Dec. 16, 2005, at A1;
252. Eric Schmitt, Senate Moves to Protect Military Prisoners Despite Veto Threat, N.Y. TIMES, Oct. 6, 2005, at A22 ("In a sharp rebuke to the White House, the Senate overwhelmingly agreed Wednesday to regulate the detention, interrogation and treatment of prisoners held by the American military."). The President eventually did sign the amendment into law at the end of 2005 but added a signing statement "that the administration would interpret the amendment 'in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and as commander-in-chief and consistent with the constitutional limitations on judicial power."
253. Elizabeth Bumiller, White House Letter, For President, Final Say on a Bill Sometimes Comes After the Signing, N.Y. TIMES, Jan. 16, 2006, at A11 (quoting Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 41 WEEKLY COMP. PRES. DOC. 1918 (Dec. 30, 2005)).
254. The subsequent passage of the Military Commissions Act is much harder to interpret and may put this story in a more negative light. Although the Act reiterates a ban on torture, it seems to leave the President considerable room to interpret what counts. It also seems to trade a ban on torture for a validation of torture that already occurred. The Act is extraordinarily complicated though, and it is unclear how it has been interpreted by the public. See, e.g., Scott Shane & Adam Liptak, Shifting Power to a President, N.Y. TIMES, Sept. 30, 2006, at A1 ("Public commentary on the bill, called the Military Commissions Act of 2006, has been fast-shifting and often contradictory, partly because its 96 pages cover so much ground and because the impact of some provisions is open to debate.").
255. Koh's theory also helps explain the messiness of the debate-some rules regarding torture may have been more deeply internalized than others. Thus, although a general prohibition may have been internalized, its full scope may not. For example, non-derogation, a principle recognized in the ICCPR and Convention Against Torture, remains more contested. See, e.g., ALAN DERSHOWITZ, WHY TERRORISM WORKS: UNDERSTANDING THE THREAT, RESPONDING TO THE CHALLENGE 132-63 (2002).
256. Koh, Bringing International Law Home, supra note 7, at 655-63.
257. Margaret E. McGuinness, Exploring the Limits of International Human Rights Law, 34 GA. J. INT'L & COMP. L. 393, 412-16 (2006).
258. Arturo J. Carrillo, Bringing International Law Home: The Innovative Role of Human Rights Clinics in the Transnational Legal Process, 35 COLUM. HUM. RTS. L. REV. 527, 561-62 (2004).
259. See generally Franck, legitimacy, supra note 7.
260. Id. at 706 ("This essay posits that, in a community organized around rules, compliance is secured - to whatever degree it is - at least in part by perception of a rule as legitimate by those to whom it is addressed.").
261. Id.
262. Id. at 708.
263. Id. at 712.
264. Franck, Legitimacy, supra note 7, at 725.
265. Id. at 719 ("When determinacy is absent, it is unlikely that states will have compunctions about not complying with the rule. Indeed, some rules are likely written with low determinacy so that noncompliance will be easy.").
266. These are not factors laid out by Franck.
267. This would also be true of the enforcement mechanisms associated with a given custom.
268. More determinate rules also facilitate compliance by clarifying the actions a government need take or avoid.
269. See Franck, Legitimacy, supra note 7, at 717.
270. See Gerry J. Simpson, Is International Law Fair?, 17 MICH. J. INT'L L. 615, 629 (1996) (reviewing FRANCK, FAIRNESS, supra note 15) ("Free speech doctrine in international law is in a similar state, lacking the determinacy and coherence that Franck deems necessary for founding a legitimate and mature rule of international law.").
271. See Franck, Legitimacy, supra note 7, at 718 (describing the rules governing the "treatment of war prisoners" as having a high degree of determinacy).
272. A February 2006 Lexis search under "News, All (English-Full Text)" is revealing. A search for the terms "United States" and "Covenant on Civil and Political Rights" and "Torture Memo" yielded eight articles. The terms "United States" and "Convention Against Torture" and "Torture Memo" yielded eighty-five articles. When the same search was run with "Geneva Conventions," 385 stories appeared. Similarly constructed searches yielded similar results.
273. See supra Part II.D.
274. See supra notes 120-27 and accompanying text.
275. See supra Part III.A.
276. See supra Part III.A.1.
277. See supra Part I.A.
278. See Franck, Legitimacy, supra note 7, at 706-12 (explaining how a rule's perceived legitimacy helps generate compliance);
279. Koh, Bringing International Law Home, supra note 7, at 626-33 (tracing how norm-internalization results in states obeying international law).
280. This could be either because the actors in question have themselves internalized the norm or because the actors (even if they disagree with the norm in question) know that others with influence or power have internalized that norm.
281. See Franck, Legitimacy, supra note 7, at 705 (explaining that "[t]his essay attempts a study of why states obey laws in the absence of coercion" and differentiating it from "studies that investigate the sources of normative obligation" and which "focus on the origins of rules - in treaties, custom, decisions of tribunals, opinio juris, state conduct, resolutions of international organizations, and so forth").
282. See HENKIN, supra note 5, at 47; see also HANS J. MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE 250 (2d ed. 1954) ("[T]o deny that international law exists at all as a system of binding legal rules flies in the face of all the evidence."); Franck, Legitimacy, supra note 7, at 705 (observing "a pregnant phenomenon: that most states observe systemic rules much of the time in their relations with other states").
283. In this sense, the doctrine of sources described here is somewhat Hartian, suggesting that the key question in determining what the law is in any instance is what rules are treated as law as a matter of social fact in the international system. See generally H.L.A. HART, THE CONCEPT OF LAW (2d ed. 1994) (developing a theory of law based on observation of social fact). The question here is not what doctrine of sources would produce the most legitimate or most normatively appealing law but, instead, what doctrine of sources would most accurately reflect the rules currently treated as law by international actors.
284. See generally Brian Z. Tamanaha, Socio-Legal Positivism and a General Jurisprudence, 21 OXFORD J. LEGAL STUD. 1 (2001) (adapting legal positivism to incorporate a wider variety of social practices into the concept of law). One could start from a different position, asserting a theory of legitimacy or of justice and developing a doctrine of sources best equipped to discover rules that meet those criteria. The rules identified by such alternative doctrines might not be the same as those currently treated as law by states, Although such projects have their appeal and may suggest a normatively preferable conception of international law, they are beyond the focus of this Article.
285. See supra Parts III.A. 1-2.
286. Accession of a large group of states known for human rights violations to a human rights treaty without attaching any RUDs might be probative evidence that those states have no intention of being bound, especially where liberal democracies attach many. Cf. GOLDSMITH & POSNER, supra note 1, at 127-28 (drawing similar inferences from patterns of RUDs). The presence of many RUDs may contrastingly indicate a much stronger Intent and expectation of being bound.
287. Jus cogens norms are peremptory norms of customary international law that states cannot contract around by treaty. BLACK'S LAW DICTIONARY 864 (7th ed. 1999) (defining jus cogens as "a mandatory norm of general international law from which no two or more nations may exempt themselves or release one another").
288. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES: CUSTOMARY INTERNATIONAL LAW OF HUMAN RIGHTS § 702 cmt. n (1987) (counting all of these as jus cogen norms); Theodor Meron, International Criminalization of Internal Atrocities, 89 AM. J. INT'L L. 554, 571 (1995) (discussing "torture, which is widely regarded as a jus cogens norm of general international law"). An important caveat is that although a particular norm may have achieved the status of an Internalized Norm, the scope of that norm may be neither internalized nor uncontested. Torture provides an example. Torture has arguably achieved the status of both jus cogens and an Internalized Norm, but the current debates over it may indicate that the scope of the rule is still undetermined. Various treaties prohibiting torture include non-derogation provisions; debate over possible exceptions to the rule against torture may be evidence that at least that principle has not been internalized. Of course, calls for exceptions to the rule against torture may simply be calls to violate the rule.
289. It might be asked how pacta sunt servanda could survive a relative de-emphasizing of treaties. If treaties are no longer de facto international law, it would seem mat the principle that states are bound by their agreements must also suffer. This Article suggests that the gap between treaties and accession is not a failure of pacta sunt servanda but, instead, the result of the growing gap between what treaties require and what states think they are agreeing to do.
290. Thus, although consent is no longer the theoretical basis for the doctrine of sources, it would be wrong to conclude that states would not be bound by their commitments. Where states have followed Process Values in negotiating a treaty, the new doctrine of sources will treat their ratification as a binding legal commitment. One could thus introduce an element of consent even within the new doctrine. One could explain Legitimated Treaties as resting on an internalized norm that valid consent to a treaty makes that treaty binding law for the ratifying parties. Process Values could be understood as the elements of valid consent. Although such a formulation has the benefit of hewing closer to ordinary ideas about treaty formation, such a formulation risks confusion regarding the actual role of consent in the new doctrine; thus, this Article avoids its use.
291. Their legitimacy is, thus, not tied to the normative strength of the rules they lay out. In many cases, the subject matter of the treaty may have no normative content at all; the treaty might set out rules for bilateral investment, rules governing the specific, treatment of ambassadors, or rules regarding how ships should pass at sea. This is not to suggest that these types of treaties never have normative content. Rules about fair trade, intellectual property, or ownership of local resources may entrench certain normative perspectives; such agreements may even be fraught with disagreements over values. The point, though, is that these treaties are treated as law because of the process behind them and not any normative content they may or may not have.
292. See Franck, Legitimacy, supra note 7, at 717. Franck states: It happens-by way of contrast-that, in international practice, the rules protecting diplomats, as codified by the Vienna Convention, have a very high degree of specificity, and they are almost invariably obeyed. So, too, are the highly specific rules, in another Vienna Convention, on the making, interpretation, and obligation of treaties. Among other subjects covered by determinate rules that exert a strong pull to compliance and, in practice, elicit a high degree of conforming behavior by states are jurisdiction over vessels on the high seas, territorial waters and ports, jurisdiction over aircraft, copyright and trademarks, and international usage of posts, telegraphs, telephones and radio waves. There is also a high degree of determinacy in the rules governing embassy property, rights of passage of naval vessels in peacetime, treatment of war prisoners and the duty of governments to pay compensation-even if not as to the measure of that compensation-for the expropriation of property belonging to aliens. Id. (internal citations omitted).
293. In a sense, this is where Process Values and the Internalized Norm of pacta sunt servanda meet. The fulfillment of Process Values would create a Legitimated Treaty and bring pacta sunt servanda into play. For a related discussion, see supra note 231 and accompanying text.
294. In an earlier era, this category might have included widely recognized rules of war, like the law of prize. See, e.g., David Golove, Military Tribunals, International Law, and the Constitution: A Franckian-Madisonian Approach, 35 N.Y.U. J. INT'L L. & POL. 363, 384 (2003);
295. Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLAL. REV. 665, 723-25 (1986).
296. See infra note 265. Some, myself included, might find relegating treaties like the ICCPR and the Convention on the Political Rights of Women to this category distressing. The fact that some of the rules listed in these treaties may not yet be "law" does not, however, deny either their moral force or the international lawyer's responsibility to seek their general recognition.
297. For an example of how this can occur, see supra notes 152-84 and accompanying text.
298. See HART, supra note 225, at 229 ("So it is possible, although difficult, to imagine that men , . . might come to attach moral importance to driving on the left instead of the right of the road ....")
299. See supra Part IV.B.1.
300. It is important to note, however, that although this method would look to opinio juris, it would do so for different reasons than the traditional positivist doctrine would suggest. Whereas earlier doctrine looked to opinio juris as proof of consent - namely that states agreed that a rule was "law"-this method would look to opinio juris as proof of a sociological fact-that states treat the rule as "law." See HART, supra note 225, at 226 (criticizing the "threadbare" quality of a theory based on consent).
301. See generally Guzman, Saving Customary International Law, supra note 135 (discussing a reputation-based theory of customary international law). Guzman suggests another useful way to think about this question. He turns the inquiry around, asking not what a particular state thinks about a particular rule, but what a state thinks other states think about a particular rule. Id. If a state believes that its actions would be seen as unlawful by other states and could subject it to sanction or rebuke, then that state believes there to be a rule of international law. Id.
302. See Guzman, A Compliance-Based Theory, supra note 6, at 1883-86.
303. This may be hard to observe, but evidence that a rule is treated as law may be visible in how rules are described and discussed in various contexts. How do states describe the rule when they explain their signature on treaties or when they pass legislation to enact it into domestic law? How do states react to noncompliance with the rule by other states? Do states use legal terms, or more importantly specific legal terms, to describe the violation? Do states use legal arguments to try to explain or excuse what might look like violations of the rule? Are sanctions against a noncompliant state seen as legitimate? Does violating the rule affect a state's reputation for law-abidingness, making agreements with other states less likely or more difficult?
304. Since the focus is on what states believe the law to be, neither a general course of practice, as traditionally required by customary international law, nor a ratified treaty, as traditionally required by treaty law, is required. Cf. Guzman, Saving Customary International Law, supra note 135, at 149 ("Practice, then, is best viewed as evidence of opinio juris.").
305. Context matters in determining what evidence will be relevant in any given case. The opinion of non-state actors may have little relevance in finding a rule concerning state-to-state relations. It may be considerably more relevant in finding evidence of consensus on human rights norms.
306. Guzman, Saving Customary International Law, supra note 135, at 154. Other probative evidence would be how a state justifies an apparent violation and how other states react to it. Do states discuss the violation in legal terms? Do they refer to specific legal rules (more probative) or appeal to international law more generally (less probative)? One might also look at international reaction to the threat of sanctions against the offending state. Are such sanctions treated as legitimate?
307. Id. at 126. As Guzman writes: Even if one could resolve the above problems about what counts as practice and the degree of consistency required, there remains the practical problem that observing all relevant evidence from all relevant states will normally be impossible, At the most mundane level, few nations document their actions and statements in away that allows for an investigation of their practices. Id. (citing BYERS, supra note 50, at 144 n.119).
308. These Process Values are themselves international law because they have been internalized by states and state actors. Accordingly, those rules could themselves change as new rules are internalized and as old ones are forgotten. One could thus imagine a new Process Value developing - for example, that any U.N. General Assembly resolution that passes by a majority vote would be binding - if and when a consensus forms around such a rule.
309. See supra Part II.B.
310. Treaties would thus either be a product of opinio juris or evidence of opinio juris.
311. See, e.g., DERSHOWITZ, supra note 198, at 132-63.
312. Widespread obedience of a treaty could thus reflect either a Legitimated Treaty backed by strong Process Values, an Internalized Norm (or Recognized Custom) recognized by the treaty, or both.
313. It is important to note that a treaty could be a Legitimated Treaty even if it contains vague terms if it. contains determinate means to define those terms. Thus, for example, a treaty with a vague requirement to protect the environment that also sets up a specific mechanism or body to define the scope of that requirement might constitute a Legitimated Treaty.
314. See supra Part I.A.
315. But see. supra Part. II.C.
316. See Waldron, supra note 87, at 168-69, 171-72. Waldron suggests that East Germany's post-Cold War argument that it was not bound by the Warsaw Pact and Turkey's post-World War I argument that the capitulations regime no longer reflected international realities are examples of just such changes. See id. at 169 ("To expect that a multilateral security treaty could survive such changes is to live in cloud cuckoo land.").
317. See Guzman, Saving Customary International Law, supra note 135, at 157 (explaining that "[b]ecause [customary international law] is formed by state beliefs, which are unobservable, and actions, which can be interpreted in many ways, the process of identifying [customary international law] is difficult and dependent on context" and asserting that "[w]hen this is combined with the lack of a process to explicidy identify [customary international law] rules, there is no way to avoid the vagueness of [customary international law]").
318. Theodor Meron, Editorial Comment, Revival of Customary Humanitarian Law, 99 AM. J. INT'L L. 817, 817 (2005) (observing that "[e]xtensive scholarship addresses various aspects of modern debates over the identification, application, and legal force of customary norms").
319. For a critical assessment, see generally J. Patrick Kelly, The Twilight of Customary International Law, 40 VA.J. INT'L L. 449 (2000).
320. Customary international law does carry a certain amount of uncertainty. It is important, however, not to overstate it. States have followed (and courts have identified) customary international law for centuries. Even today, when many areas of international law have been reduced to treaty, courts continue to find new rules of customary international law. See Meron, supra note 258, at 817.
321. See supra Part II.
322. See generally Hathaway, An Integrated Theory, supra note 4; supra Part II.D.
323. See GOLDSMITH & POSNER, supra note 1, at 107-34. It is not exactly clear which -thinness or nonexistence-they are suggesting. See also Part II.D.
324. As Douglas Donoho argues: Perhaps the most fundamental weakness in the present human rights normative framework is its continuing textual and interpretive indeterminacy. To varying degrees depending upon the right, the catalogue of rights consists of extremely vague, generally stated principles. Many important rights are described in highly elastic terms such as rights to "equal protection of the law," "freedom of thought," "self-determination," "work," "just and favorable conditions of work," "an adequate standard of living," and prohibitions against "discrimination," While some degree of abstraction and general language is perhaps necessary to any multilateral human rights treaty, such language provides little textual guidance as to a right's specific content and meaning. Douglas Lee Donoho, The Role of Human Rights in Global Security Issues: A Normative and Institutional Critique, 14 MICH. J, INT'L L. 827, 839-40 (1993) (internal citations omitted).
325. See id. at 840 ("Experience has shown that formal State consensus over such broadly worded human rights standards tells us little about the depth of actual State agreement about such content,"); Franck, Legitimacy, supra note 7, at 719 ("When determinacy is absent, it is unlikely that states will have compunctions about not complying with the rule. Indeed, some rules are probably written with low determinacy so that noncompliance will be easy.").
326. U.N. Econ. & Soc. Council [ECOSOC], Sub-Comm'n on Prevention of Discrimination & Prot. of Minorities, Minimum Humanitarian Standards: Analytical Report of the Secretary-General submitted pursuant to Commission on Human Rights resolution 1997/21,66 U.N. Doc. E/CN.4/1998/87 (Jan. 5, 1998) (suggesting a "possible problem with the application of existing human rights standards to situations of internal violence concerns the lack of specificity of some of the most relevant rights and protections," and mentioning the ICCPR); see also Donoho, supra note 263, passim (discussing potential indeterminacy in the Convention on the Political Rights of Women and the ICCPR); Simpson, supra note 213, at 629 ("The incoherence of free speech stems from the extremely open-textured and heavily qualified nature of the right as laid out in Article 19 of the International Covenant on Civil and Political Rights.").
327. See, e.g., Kelly, supra note 258, at 491. As Kelly argues: These broad social forces are transforming domestic attitudes about political rights and women's rights, but there is little evidence that states have accepted the norms associated with individualism and post-modern society as an international legal obligation that limit their domestic choices. It is equally unclear how deeply the attitude of individualism and rights consciousness are, in fact, penetrating these societies beyond the economic elites. Id. (citing Robert J. Samuelson, Global Capitalism, R.I.P.?, NEWSWEEK, Sept. 14, 1998, at 40).
328. I do not consider here the extent to which any individual treaty studied by Hathaway may or may not reflect Internalized Norms or be backed by strong Process Values. Some of the patterns she shows reflect only partial acceptance of a norm; others may simply reflect common violation of a rule that is international law. Disaggregating these possibilities would take a very careful study of the history and practice related to each treaty, work that is beyond the scope of this Article. The hoped explanatory power of this revised doctrine of sources is not in explaining all of Hathaway's findings but in providing an explanation for at least some-an explanation that might better bridge the gap between law and action. Some gaps will and should remain under any explanation; this theory is not intended to equate practice with law.
329. For example, see supra notes 152-80 and accompanying text, which describe the Filartiga story.
330. Even if the treaties are backed by few Process Values, the norms they describe are internalized enough that a liberal state may worry that the treaties will provide additional, perhaps determinative, evidence of the rule, increasing the likelihood that those states would be sanctioned for noncompliance. A second issue, hinted at here, is the domestic effect such treaties would have in liberal states. Even in the absence of other Process Values, many liberal states would consider these treaties binding as a matter of domestic law. This raises other issues further discussed infra at note 282.
331. See supra Part II.B.
332. See supra Part II.D.
333. This seems to be the case with Goldsmith and Posner, for whom examples of noncompliance prove the absence of law, but examples of compliance are belittled as pragmatic coordination by another name. See GOLDSMITH & POSNER, supra note 1, at 120-29.
334. Glennon, supra note 90, at 956 ("Cycles of reinforcement lead to enhanced cooperation, as evidenced by the deepening integration of the European Union; success breeds success. But failure also breeds failure, and disintegration, further disintegration."); see also David P. Fidler, The Future of the World Health Organization: What Role for International Law?, 31 VAND. J. TRANSNAT'L L. 1079, 1104 (1998) ("To many people, international law is a weak institution in international relations that usually promises more than it delivers.");
335. Jed Rubenfeld, Two World Orders, PROSPECT, Jan. 2004, at 36 ("A second spur to U.S. unilateralism has been a growing scepticism about the agenda of the 'international legal community. ' The scepticism is partly due to the proliferation of human rights conventions that are systematically violated by many of the states subscribing to them.").
336. This is an important distinction. Internalization of the fact that a rule is "law" is not the same as choosing to obey the law. A state's belief that a rule is law affects that state's calculus in deciding what actions to take. Breaking the law may bring particular consequences-the reputation of being a law-breaker, specific. legal sanctions, or even the psychological trauma of knowing one broke the law-but there will be times, perhaps when national security is endangered, when a state will decide that it must risk such consequences.
337. A rule stating that a certain source is international law provides a much simpler decision rule than a rule that identifies the process through which international law forms.
338. See generally CHAYES & CHAYES, supra note 10 (proposing a "managerial" model of compliance that relies on repeated dialogues and interactions between states over rules);
339. FRANCK, THE POWER OF LEGITIMACY, supra note 15 (arguing that state compliance with international law results from perceived legitimacy of particular rules);
340. Franck, legitimacy, supra note 7 (same);
341. Goodman & Jinks, Socialization and International Human Rights Law, supranote 10 (suggesting that acculturation or socialization, rather than coercion or persuasion, may best explain some state compliance);
342. Guzman, A Compliance-Based Theory, supra note 6 (designing a reputation-based model of state compliance with international law);
343. Guzman, Saving Customary International Law, supra note 135 (same); Hathaway, An Integrated Theory, supra note 4 (arguing that state commitment to and compliance with treaties is a function of transnational and domestic enforcement and collateral consequences);
344. Koh, Bringing International Law Home, supra note 7 (suggesting that states' compliance with international law results from international law's rules' internalization into domestic legal systems);
345. Koh, Why Do Nations Obey?, supra note 14 (same).
346. This discussion applies to a court or tribunal applying international rather than domestic law. The situation would be different if it involved a U.S. court analyzing U.S. obligations under a treaty the United States had ratified. Under those circumstances, the treaty would be binding U.S. law under the Supremacy Clause of the U.S. Constitution and would be applied to the dispute. None of the analysis suggested here would be necessary.
347. See Guzman, Saving Customary International Law, supra note 135, at 149-57 ("If states as a group believe there is a legal obligation, this is enough to generate reputational (and perhaps direct) sanctions. The question of practice is not directly relevant to the issue.").
348. Id. at 149.
349. Id. at 157-59.
350. See Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 AM. J. INT'L L. 757, 758 (2001) (citing Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27); Western Sahara, Advisory Opinion, 1975 I.C.J. 12, 30-37 (Oct. 16); and Legal Consequences for States of die Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16, 31-32 (June 21)).
351. One particularly difficult question raised by the new doctrine of sources is whether different states, by following different paths to ratification of a treaty, may demonstrate different intent to be bound. For example, treaties apply as the law of the land under the U.S. Constitution. Senate approval is also required for ratification. As a result of both, the United States cannot ratify a treaty without investing considerable political capital and without expecting to be bound. If the United States enters into a treaty with a state that does not have such mechanisms in place and other Process Values are not followed in negotiating the treaty, one could argue that the treaty is binding international law for the United States but not binding on the other state. Others have suggested ways in which the nature of a state may determine its place within the international community-distinguishing, for example, between the international law applicable to liberal and illiberal states. See generally JOHN RAWLS, THE LAW OF PEOPLES (1999);
352. FERNANDO R. TESON, HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY (3rd ed. 2005);
353. Anne-Marie Burley, Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine, 92 COLUM. L. REV. 1907 (1992). Would the new doctrine of sources necessitate such a view? This issue remains one of the most difficult raised by the discussion and requires further consideration.
354. Of course, the identity of the of the states does matter. Different groups of states may view the international system, its rules, even law-abidingness, differently. There may be reasons to think about a state's audience for specific actions. For the purposes of this Article though, it is sufficient to speak in terms of the views of all other states considered together.
355. See supra Parts IV.B.2, IV.C.2.
356. See Guzman, Saving Customary International Law, supra note 135, at 134 ("The international system, however, does not provide ... a set of courts ready to resolve interstate disputes. Since violations of [customary international law] do not lead to court-imposed sanctions, law can only affect behavior if there is some other sanction associated with noncompliance.").
357. A treaty with determinate rules, if backed by other Process Values, should provide as much certainty as any treaty did under the old doctrine of sources.
358. See supra Part IV.C. For potential examples, see supra note 265.
359. Sophisticated lawyers likely approximate such advice even under current doctrine.
360. See supra Parts I.A-B.
361. See supra Part II.D.
362. See supra Part II.B.
363. See supra Part II.B.
364. George Parker, EU Pact Dispute Blights Foreign Minister Meeting, FIN. TIMES (London), Nov. 28, 2003, at 6.