When International Law Works: Realistic Idealism After 9/11 and the Global Recession. By Tai-Heng Cheng. Oxford, New York: Oxford University Press, 2012. Pp. xiv, 341. Index. $65, 40 [pounds sterling].
In the acknowledgments section of his book When International Law Works: Realistic Idealism After 9/11 and the Global Recession, Tai-Heng Cheng reports that he needed five years to write it. This stretch comes as no surprise when one considers the many and varied topics that he addresses in this impressive work and the extensive and wide-ranging research that he has brought to bear on these topics.
His approach in this book is, to understate the matter, unusual if not unique. Cheng acknowledges that "[i]n world affairs each decisionmaker ... chooses whether to act according to international law, and faces the consequences of his choices. Remarkably, scholars have not paid much attention to how decisionmakers ought to choose. That is the subject of this book" (p. 2). Cheng then adds that his book
does not examine whether international law is law and what it consequently requires of decisionmakers. Instead, this book explores what decisionmakers should do about international law, whether or not it is law. Hopefully, inverting the prevailing debates will help ease the gridlock between realists who say international law is not law and can be ignored, and idealists who state that international law is law and should be taken seriously. (Id.) Sadly, I believe that his suggested approach will not ease the gridlock between realists and idealists when it comes to international law. The problem is that while both realists and idealists believe that "law" is important and should be taken seriously, realists believe that international law is not law, and idealists believe that it is. Indeed, it is highly likely that both realists and idealists believe that, absent extraordinary circumstances, "law" should be obeyed and its violation subject to sanctions of varying severity depending on the circumstances, but, as noted, realists do not believe that international law is law.
Interestingly, after stating that his book does not examine whether international law is law, Cheng proceeds to summarize the contemporary debate on this issue. Perhaps the most well-known proponent of the thesis that international law is not law is John Bolton, who served as the U.S. permanent representative to the United Nations in the George W. Bush administration. Cheng quotes Bolton's categorical view that "[international law is not law; it is a series of political and moral arrangements that stand or fall on their own merits, and anything else is simply theology and superstition masquerading as law" (p. 3). (1) This statement is followed by quotations from various writers who reject Bolton's views. Perhaps the most noteworthy is an assertion from Harold Koh, who, as of this writing, is the legal adviser to the U.S. Department of State: "The first myth is that somehow 'international law is not really law'" (p. 4). (2)
Cheng next turns to the also controversial perspective of Jack Goldsmith and Eric Posner. (3) Their views of international law are less extreme than those of Bolton, although they seem to reject the entire concept of customary international law. (4) Whether or not it is correct to suggest that Goldsmith and Posner reject the entire concept of customary international law, Cheng quotes two statements from their book that reflect a highly negative view of international law in general. The first is that "[t]he morality or immorality of international law is exhausted by its content; international legality does not impose any moral obligations" (p. 6). (5) The second, in the same vein, is that "[s]tates cannot bootstrap cooperation by creating rules and calling them 'law'" (p. 3 n.8). (6)
Cheng then briefly discusses the responses of some scholars to the Goldsmith and Posner position. With respect, the debates on the views of Bolton and of Goldsmith and Posner, although interesting, are academic. in the real world, as demonstrated convincingly by Michael Scharf and Paul Williams in their book Shaping Foreign Policy in Times of Crisis, (7) decisionmakers, at least in the United States and Europe and in states dedicated to the rule of law, take international law seriously as part of the decision-making process in international relations. (8)
This is not to say that all is well with international law and international institutions. To the contrary, substantial evidence suggests that international law is "in crisis." (9) For my part, I have taken the view that, despite the fine work done by international lawyers in the U.S. government and in various foreign ministries, the international legal system as a whole is increasingly dysfunctional, especially in some of the most important and challenging topical areas of international relations, including the maintenance of international peace and security; the law of armed conflict; arms control and...