The Assault on International Law.

Author:Nafziger, James A.R.
Position:Book review
 
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The Assault on International Law. By Jens David Ohlin. Oxford, New York: Oxford University Press, 2015. Pp. xiii, 289. Index. $29.95.

Puzzling out the appropriate contours and weight of public international law for application in and by the United States is a never-ending challenge. During the last two decades, two interrelated revisionist initiatives have dominated the academic response to this undertaking. One of these initiatives, as a matter of constitutional or foreign relations law, has been to question expansive interpretations, especially by federal courts, of human rights and customary international law (CIL) (arguing, for example, that the latter cannot be federal common law). Another initiative, more squarely in the domain of public international law, has been to question whether CIL actually operates as an exogenous constraint on state behavior. Standing in the crosshairs of this second initiative is opinio juris, as both a requirement of CIL and an explanation of state behavior. Accordingly, it is claimed that CIL, in particular, has little or no independent normative character in the conduct of foreign affairs: states typically do not act from any sense of legal obligation. Instead, they seek only to maximize their national self-interests, typically on an ad hoc basis. At best, CIL is simply cheap talk to burnish a state's image. Moreover, even treaty obligations are said to be shallow.

Both of these initiatives have resonated profoundly at home and abroad by coinciding with, supporting, and sometimes influencing the thinking of a majority of the U.S. Supreme Court and, for eight years, the presidency of George W. Bush. Recent judicial decisions consistent with the two initiatives have helped fuel a current project to temper what has been criticized as the overly broad endorsement of treaty-based rules by the Restatement (Third) of the Foreign Relations Law of the United States and the interpretations of these rules by international tribunals. Proposed revisions of the Restatement (Third) are intended for inclusion in a still incompletely formulated Restatement (Fourth).

Above and beyond the black letter of foreign relations law, academic skepticism about the reality and compulsion of international law has been animated by rational-choice theory: the assumption, borrowed from economics, that a purposeful balancing of benefits against risks best identifies and helps determine behavioral choices. The leading proponents of applying this methodology to international law have been Jack Goldsmith and Eric Posner, particularly in their definitive work, The Limits of international Law. (1) They rely on their understanding of game theory, structured by four models of national self-interest to explain regularities in the international behavior of states: coincidence of interest, coercion (typically of small states by big states), cooperation, and coordination at a particular focal point. In seeking to explain actions of states based on games conducted according to one or another of these models, the authors adopt what they describe as a positive empirical approach and reject a normative one. They generally share the skepticism about an expansive role for international law among scholars pursuing the other initiative of revising foreign relations law (a project to which Goldsmith and Posner have also contributed). For example, The Limits of International Law scrutinizes and casts doubt on the integrity of the Supreme Court's iconic dicta and decision in The Paquete Habana and other jurisprudential pronouncements of CIL as "our law." (2) Curiously, however, Posner later seems to have dismissed the importance of judicial opinions, (3) fundamental as they are in both The Limits of International Law and the foreign relations law initiative. In any event, Goldsmith and Posner argue that state behavior is best explained by the ad hoc strategic choices that they routinely make, conditioned by the structure of the games that they play in terms of one or another of the four models, rather than out of a sense of legal obligation. Accordingly, as games evolve, changing strategic conditions--including technology, stakes, and interests--help shape both a state's behavior and changes in it.

The instrumental approach of The Limits of International Law to explain state behavior fully has elicited widespread criticism, ranging from its methodology and presentation of evidence to its ambitious claims, explanatory value, and, ultimately, relevance. Ironically, although the book does not define the operative national self-interests with any precision, what is said about them seems quite compatible with CIL. Indeed, critics of The Limits of International Law have pointed out that the four models of national self-interest are cleverly posited so as to capture as endogenous the very elements that constitute the exogenous authority of international law, thereby rendering the anti-normative theory of The Limits of International Law nonfalsifiable.

Opening chapters in Jens David Ohlin's The Assault on International Law ably summarize the multifaceted critiques of the two initiatives. Concluding chapters seek to demonstrate the efficacy of a sense of legal obligations in managing armed conflict, combating terrorism, and generally maximizing national self-interests. Ohlin also argues the benefits of legally binding commitments within the cooperative framework of...

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