In his new book, American Reckoning: The Vietnam War and our National Identity, UMass historian Christian Appy argues that a false sense of 'American...
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A new book by Jens David Ohlin of Cornell University, The Assault on International Law (Oxford), presents a scathing critique of the Bush-era international legal team who maintained that the United States is not beholden to any international legal obligations. Ohlin, by contrast, argues that nations should obey international law out of their rational self interest.
You write that international law is under attack in this country. Who is it under attack from - just a few conservative skeptical law professors in the ivory tower or is it more systematic and widespread?
It is indeed more systematic and widespread and flows from multiple sources. There are deep historical roots for American exceptionalism, isolationism, and skepticism towards international law. In the book I focus on one particular source: intellectual arguments that the US should ignore international law because it is non-binding, not real law, or not enforceable in federal courts. These arguments make it easier for politicians to ignore international law because they reduce the costs of non-compliance.
Why should everyday Americans care about international law?
Cooperating with global institutions makes us stronger and helps us achieve our strategic goals. Part of that cooperative enterprise includes fidelity to international norms, not just participating in institutions like the United Nations. Take just one example. If we had cooperated with international partners early on during the armed conflict with al-Qaeda, instead of going it alone and using torture, we might have achieve better and faster results.
But there is a lot of skepticism here, it seems almost baked into our system, at least with respects to refusing to ratify seemingly innocuous international treaties on things on like the rights of the disabled, or child soldiers, or freedom of the seas. If conservatives believe that international law is meaningless, why are they so against ratifying such treaties? Also, is it just simply a deep-seated worry of letting foreign law supersede domestic law, or is it rooted in some abstract desire for greater autonomy, which some Americans worry is slipping?
Yes, I think there is almost an obsession with sovereignty and self-government, as if international law requires that America be ruled from Geneva, Brussels, and The Hague— rather than Washington DC. This rhetoric is very common. It connects the hostility towards international law with a purported fidelity to the political ideals of the framers that we should be ruled by ourselves rather than from Britain. Seen in this light, international law becomes a counter-revolution. But of course that’s just crazy. The framers were well aware of international legal norms and the great benefits that flowed from complying with them. Also, engaging with international law is an expression of our sovereignty, not a denial of it.
A common charge against academics is that they have no power or influence over policy or legal decisions. But your book paints a different picture, one of at least legal professors having too much power. Is that the case?
I don’t think that professors have too much power. But I do believe that ideas matter, and that intellectual arguments are more than just Ivory-Tower-ism. If they are good arguments, they help justify policy outcomes. If they are bad arguments, they provide a patina of legitimacy to policy choices that are questionable and that ought to be rejected. That’s what I think happened here.
Our commander in chief is a former constitutional law professor. Yet many on the left, especially in the human rights field, would charge that he has ignored international law as much as his predecessor, especially when it comes to the illegal use of drones against American citizens in Yemen, NSA spying and so forth. Would you agree?
No, I don’t fully agree, though I understand where that criticism has come from. Obama believes in strong executive authority in war-making, though not to the same extent as George W. Bush in his first term. But Obama ended the CIA’s detention authority, stated flatly that we were wrong to use torture, and he wants to close Guantanamo if he can. That being said, he has been aggressive in using drones and targeted killings, though I think most of the drone strikes are consistent with international law if you believe that there is an armed conflict between the US and al-Qaeda. That being said, I do think Obama has over-used covert and unacknowledged use of force (in Yemen and Pakistan).
You describe this so-called “New Realist” tradition that rejects international law. It sounds like a shadowy cabal much in the same vein as the Neoconservative movement was referred to back in the day. You write that the movement triumphs sovereignty and American exceptionalism – how dangerous is this movement to our ability to wage war? How much is it in line with what international relations scholars would term as “neo-realism”?
I deliberately used the term “New Realist” to show that these scholars have some intellectual debt to the thinkers that political scientists call “classical realists” and “neo-realists” — both of whom studied power politics in international relations. But they take the arguments to the next level by explicitly arguing that states have a moral duty to defect from customary international law when it becomes inconvenient for the state. I think this approach is wrongheaded, not just intellectually but strategically as well. In our age, successful war is now a multinational effort — going it alone just doesn’t work anymore.
Let’s pull back a second and look at other states besides us. Why should any rational state, whether a good Samaritan like Denmark or a rogue actor like Russia, obey international law? What’s in it for them?
States can and should comply with international law because it creates a system of reciprocal constraints. A state that complies with international law is sending a signal to the rest of the world that we take these constraints seriously. If a state does not send that signal, they risk undermining the very stability that they are relying on. Put the point this way: A rogue state wants to be a free-rider: defect from international law while everyone else complies with it. But if everyone else rejects it too, the outcome is disastrous even for the rogue state.
A number of states are fighting terrorist groups beyond their borders. Where does a state’s right of sovereignty cede to another state’s right to defend itself? The UN Charter prohibits the use of force, yet then UN Security Council Resolution 1373 appears to allow for self-help when states provide terrorist groups sanctuary. Is international law too constraining when it comes to fighting nonstate actors?
This is hotly debated right now. The proposed standard under international law allows intervention in such cases if the territorial state is unwilling or unable to stop the terrorists from using their territory to launch attacks on third parties. While there is some debate among scholars over whether this standard describes the state of the law today, almost everyone agrees that this is where the law is heading.
Let’s discuss a few of the personalities in your book. Your intro paints this bizarre picture of a secretive Bush-era War Office in the Justice Department tasked with issuing all these legal memos of what constituted torture after 9/11. The villains are David Addington and John Yoo, a law professor who then brings in his buddy John Goldsmith, who despite only being on the job nine months before returning to teaching, is appalled by what he sees. You write that “principled men and women like Goldsmith pulled us back from our darkest impulses; they saved the law itself.” Did he in fact rescue international law?
In one sense yes, but in a deeper sense no. Goldsmith rightly receives credit for cleaning up the mess in the Justice Department’s Office of Legal Counsel left by John Yoo’s unsupportable and bizarre legal arguments. But I want to refocus the argument. Goldsmith co-wrote a famous book with Eric Posner called The Limits of International Law. That book is just dripping with moral hostility towards international law. For me, that’s the lead and it got buried when people wrote about Yoo and Goldsmith.
At the moment we are trying to ink a nuclear deal with Iran and a team of senators have reached out to Iran’s leadership decrying any such deal. There seems to be this disagreement over which branch of government has the power to negotiate such agreements. Historically haven’t presidents always been the principal negotiators on these kinds of issues? What role should congress play when it comes to nuke deals but also waging war?
The Senate has an important role to play in international law, not just for giving advice and consent on treaties but also lots of areas where the Constitution gives the legislative branch an important role. That includes declaring war, the Define and Punish Clause, and lots of other provisions. But yes, historically the Executive Branch has been in charge of diplomacy, and there is good reason for that. It is a bit chaotic to have our diplomatic posture pushing and pulling in multiple directions at once — not a good idea.
You argue for states and their leaders to adapt a more expansive notion of rational self-interest. What do you mean by this?
I argue for a planning theory of rational agency. The old way of thinking about rationality is to play your best response at each moment in time. I think that’s wrong. I think a rational agent should act in accordance with a plan that makes the agent’s life go better over all. If the individual action is part of that rationally justified plan, you should follow through on it. That’s why it is sometimes rational to do something that, in the immediate moment, “seems” to be to your disadvantage. The advantage comes because the action is part of an overall plan that is beneficial. I think legal constraints often work this way. You should comply with the law even if ignoring it might have some tempting benefits right now. Why? Because complying with the law is one part of an overall plan that makes the agent’s life go better.
[Photo: Steve Rhodes via Flickr Commons]
The Assault on International Law
by Jens David Ohlin
Oxford University Press, 304 pages, $29.95
Jens David Ohlin is Professor of Law at Cornell Law School, co-author of Defending Humanity (Oxford), and co-editor of Targeted Killings (Oxford).
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