Reasons to Comply

Philippe Sands

  • The Limits of International Law by Jack Goldsmith and Eric Posner
    Oxford, 262 pp, £17.99, February 2005, ISBN 0 19 516839 9
  • War Law: International Law and Armed Conflict by Michael Byers
    Atlantic, 214 pp, £16.99, April 2005, ISBN 1 84354 338 9

Not since World War Two has the nature and adequacy of international law provoked such a debate, both in Britain and abroad. A great number of international agreements have been adopted over the past sixty years, establishing minimum standards of behaviour with which states and other international actors must undertake to comply. They affect people in every country, and cover just about every subject: trade, investment, air transport, oceans, boundaries, environment, human rights, armed conflict. The great majority of these rules are not controversial; they work efficiently, and they are complied with. They establish the minimum standards necessary for co-operation in an increasingly interdependent world. The emergence of this great body of rules reflects a silent global revolution. But most people are unaware of the rules, of how they are made, and of quite how many of them there are, and this raises serious concerns about the accountability and legitimacy of international law-making. In Britain, almost all treaties are rubber-stamped by the executive and are not debated or even properly noted by Parliament, unless they address an issue of EU law. In the United States, there is an appropriately lively and informed debate about international law-making, democracy and constitutionalism. Jack Goldsmith and Eric Posner, the authors of The Limits of International Law, have contributed significantly to that debate and have played an important role in focusing attention on issues of legitimate concern. A similar debate is needed in Britain, as an increasing number of national laws are adopted off the back of international norms which have often been negotiated by the executive in circumstances in which the legislature plays no role.

It is also important to be clear about the limited function of global rules, especially those that impinge most directly on the exercise of sovereignty on issues affecting the vital interests of states, such as the security of citizens and the circumstances in which force can be used. Global rules clearly cannot sort out all the wrongs of the world. A great many of them need attention, not least as a result of the changes that have taken place since the 1940s. The number of states has increased from around fifty to around two hundred, as a consequence of decolonisation. The number of issues on which international co-operation and international legislation are required has grown exponentially. New actors have emerged: the importance of international organisations, NGOs and corporations pose challenges to an international legal order constructed on the assumption that the global order revolved around states. Failed states, the movement of people between states, permeable national borders, malign non-governmental forces such as al-Qaida, and the proliferation of weapons of mass destruction – all these pose further challenges.

Why do states comply with international law? That important question lies at the heart of The Limits of International Law. Goldsmith and Posner are well-known sceptics about the efficacy of international rules and the legitimacy of the international law project that began after World War Two. Their book’s chief value is that it sheds light on the intellectual foundations of the assault on global rules led by the Bush administration. Goldsmith joined the administration in 2002, first in the general counsel’s office at the Pentagon and then as assistant attorney general in the Office of Legal Counsel, which he left in June 2004.

Goldsmith and Posner are clear that ‘the best explanation for when and why states comply with international law is not that states have internalised international law, or have a habit of complying with it . . . but simply that states act out of self-interest.’ This assumes that states can and do act rationally, and that in exercising rational choices the values they apply are consistent with those of Goldsmith and Posner. Practice suggests otherwise. The authors’ claim is difficult to sustain even on the basis of the limited material they deal with.

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