What Is an International Rule of Law? Competing Perspectives on Its Meaning, Feasibility and Desirability

PANEL #1 (7:05-8:45 p.m.)

This panel will explore competing definitions and visions of what is meant by an international rule of law, a concept that has proved elusive to define. Is international law really law? What exactly does rule by international law mean? Is such a regime really possible or even truly desirable? Who is to make the rules? Does the international lawmaking process assure that international law is good? The discussion will provide a necessary starting point for the entire conference by trying to lay out the key positions in the debate over the proper role and scope of an International Rule of Law.

Moderator: Hon. Dennis Jacobs, 2nd Circuit Court of Appeals
Panelists:
* Professor Thomas Franck, New York University Law School
* Professor John McGinnis, Northwestern University Law School
* Professor Jeremy Rabkin, Cornell University
* Professor Jeremy Waldron, Columbia Law School

Judge Jacobs--

Closely matched panelists in disagreement; this will be the rare law school event that will be worthy of being called a symposium, in which orthodoxies will be challenged and moderators in every room to prevent assault and arson. The interface between our constitution and international law generates questions of extraordinary interest and subtlety, but they have previously been coolly debated among specialists. As we meet now, however, they are a flashpoint of anger. Why is the subject of this symposium exciting passion and rage?

International law and standards have become a tool of anti-Americanism, and it has become a culture in Europe and some U.S. law schools. These issues have become a theater in the culture wars. One team is adept and unafraid of dealing pragmatically with machines, force and commodities; they see themselves as clear-sighted and patriotic. The others are the brain-working classes: lawyers, academics, journalists. They champion the rule of law, and use it to subordinate and restrain the more practical types and expand their own funding. I expect that these conflicts will not overwhelm us, and an opportunity now presents itself to discuss them with mutual respect.

Manhattan is a center of internationalism. Contrasting with the optimism of the UN building is the hole in the ground where the World Trade Center used to be. But look around New York, and you see how nationalism and sectarianism lose their force in cuisine and the general commerce of American life.

International law is not all human rights and military conflict; it is composed in the greatest part of a well developed, highly ratified system of order for business transactions: ships given passage, piracy suppressed, criminals extradited, tariffs and duties adjusted and negotiated. This panel will explore the more controversial topic of an international rule of law.

In which sectors do international legal norms ideally operate? what allegiance do American actors owe to them? The Constitution intersects extensively with international affairs: punishing piracy, making the president Commander in Chief, giving Congress the power to declare war, prohibiting the states from making treaties. One pervasive issue is international customary law. You're on the turf of the 2nd Circuit, and we only use international customary law in the absence of American law. More expansive approaches may recommend themselves for one reason or another. Should a norm be respected for countries that have not agreed to it? Relatedly, what force should be attached to norms identified by academics and NGOs rather than legislatures and executives?

Prof. McGinnis has predicted the rise of international federalism, and the decline in power of the nation-state. Jeremy Waldron argues that international norms respecting the treatment of prisoners of war are owed a special deference. Rabkin will offer an original perspective on the dream of global justice -- that it is an impossibility and ignores world political dynamics.

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Prof. McGinnis--

The domestic world is becoming full of international law, with judges proposing to use it for interpreting our own constitution. Others want to use it as federal law to displace our own legislation, and to determine how we will conduct the war on terror. Unprocessed international law, I will call "raw international law," to distinguish it from international law to which the executive and legislative branches have agreed. How are we to evaluate the quality of raw international law?

One process that commands respect for norm creation is democracy. Collective judgments of the many are likely to be better than those of the few. Customary international law has a democratic deficit at its heart -- five deficits, in fact. Nations need not expressly consent to customary international law to be governed by it, only fail to express disagreement. There's also the influence wielded by non-democratic and even totalitarian governments, especially on human rights treaties. Should we give domestic effect to treaties we did not ratify, but Axis powers did? Most nations themselves don't give effect to customary international law, in contrast to Congressionally passed laws, which are obeyed. Many principles of customary law have no canonical text; someone must assess how widespread the practice is. Social science shows that the average American understands what's going on in Geneva than what is going on in Washington, which gives elites an advantage in international law and allows them to get what they could not through domestic democracy.

International customary law lacks the virtue of domestic norms and common law. The actors in international law are nations, not people, and thus do not act to benefit people. Nor is it efficient even for nations. The 180 nations in today's world have different interests, and many have never interacted in substantial ways, much less reciprocally. We do not generally circumscribe the actions of states and federal actors without a supreme law that has gone through the process of democratic deliberation. The political branches can decide to enter into international agreements if they determine that such would improve mutual welfare.

American law may be better than international law even for other nations. Most of our decisions about human rights directly affect those who have subjected themselves to U.S. jurisdiction. Some individuals can choose to move here and take advantage of our particular bundle of rights and responsibilities. By converging our domestic law to international law, we may lose the gifts that American exceptionalism can deliver to the world. The U.S. is the world's great power, the global hegemon. It stands to gain the lion's share of resources from the peace and prosperity of the world, and its political process thus has incentives to maximize that peace and prosperity. Moreover, immigrants contribute to our political process. Insisting that our courts follow our own law, America helps the world most by remaining true to our own democratic genius.

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Prof. Franck--

Customary international law is largely a non-issue; it overwhelmingly consists of treaty law, just as statutory law has replaced customary law domestically. The Alien Tort Claims Act, or treaties approved by two thirds of the Senate, meet McGinnis's democracy test. This includes the UN Charter, which has the International Court of Justice and requires signatories to abide by it. International law does not pull states to compliance contrary to their interests, and the possibilities of what international law can achieve are limited by state interests and the distribution of state powers. So power, not the norm, is what governs; if states decide to abide by hard international norms, it's because it meets their interests at the time, not because of a desire to comply with the law as such. Free-floating custom, unattached to anything else, gets no attention from me and little from American courts, but I am concerned by the attack on international law in Goldsmith and Posner.

In 1907, the Secretary of State felt it necessary to have an impartial international tribune. What has caused us to move from Elihu Root's admonition to the delegates negotiating in the Hague? What has changed is that the U.S. does now see itself as the world's sole superpower. It's one of those odd things about law, that it tends to favor the weak because it imposes obligations on the state that sees itself as the world's only superpower, which it could avoid being bound by with the preponderance of its power. The Israeli Supreme Court strives mightily to bring its decisions on the fence into some measure of compliance with the UN Court. We have thousands of treaties that bound other states, with which they comply routinely. Should the U.S. be bound as we bind Uganda or Chad?

We aren't the world's only hegemon. If we were playing a chess match for hegemon, there would be North Korea and Iran, which have defied the U.S. We cannot compel them, and we cannot alone compel the climate, diseases, money laundering, drugs or settle the problems created by the invasion of Iraq. If you're into the notion of rational choice, you don't start with the notion of "I can have everything I want by defying the law." You start with "I must enroll others into cooperation, and recognize that I'm going to win some and lose some."

If the configuration of state interest is to maximize one's options in every interaction with every other state, then international law is rubbish. But the world is not like that. We cannot win every encounter; what we can do is support the law. On balance, we win some, we lose some, but above all our interest is in the peaceful resolution of disputes, as we see in trade negotiation. If the law says you are not to use force unilaterally unless you have been or are about to be attacked, you may say "that doesn't answer the problem of a world of terrorism and nuclear weapons." But you don't follow your interest by saying you need a permission slip from no one. The system of law comes to an end, and that is a much bigger loss, aside from the fact that you are more likely to make mistakes when you're alone and can't get anyone else to sign on. If you overthrow the only system we've got -- a duly passed treaty -- you are demolishing something more precious than anything else you've got.

There may be situations so overwhelmingly threatening to the U.S. that the law has no place in it and we do what we must to save ourselves, but we must determine when that standard has been reached, and there must be checks and balances in making that decision. That is what the law is, and those are the parameters in which the foreign policy of the U.S. must operate.

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Prof. Waldron--

The rule of law is the ancient focus of our allegiance as lawyers; it's an American ideal, and an international law as well. It's the source of the dignity and power of lawyers' profession. Is it clear what the rule of law demands of us in the international arena?

What does it require of us in the domestic realm? Suppose I'm an ordinary citizen: it requires that I obey the law, be alert to my obligations, and should not act in a way that harms or undermines the legal system. There are many areas where the law leaves me to my own devices, which is not a matter of regret. In most conceptions of the rule of law, the citizen is entitled to insist that the law be clear, and if it is uncertain, he is entitled to the benefity of that uncertainty; a presumption of freedom. The whole point of the rule of law is to secure an environment to act and secure affairs, to plan business. The elimination of uncertainty, that's the raison d'etre.

Think about the position of the Administration, or a lawyer working for it. What does the rule of law demand of them? Unlike the individual citizen, the Administration does not have any inherent interest in freedom of action in the way the individual does. On the contrary, it should act in accordance with law, bending over backwards to honor the idea of governmental compliance with law. This lawyer should advise the government to act in accordance with the law, not gratuitously, but to foster an atmosphere of freedom for citizens.

It is tempting to say that the nation-state becomes analogous to the citizen at the level of international law, and thus the Administration should have that same benefit of uncertainty in that realm. It need not wish for more law, rather than less. It is entitled to treat the Geneva Convention as not binding more than it obviously textually is.

But this analogy is misconceived. The state does not lose its legal and rule-governed character in the arena of international law. As Kant noticed, there is something odd and bizarre in a state treating its majesty as a sovereign republic as a license to demand freedom from international constraint.

One way to understand this is to remember that the state is not just the subject in international law; it is the source of law and an actor. International law is horizontal, depending largely on treaties for creation and the nations for enforcement. The Administration itself, like a lawyer, is an officer of the law, and therefore one cannot advise it on the model of finding loopholes. Although we use this fiction that sovereigns are individuals, real nation-states are not individuals. They are trustees of the people committed to their care, in pursuit of the peaceful and orderly world we seek, sought for the sake of millions of men and women committed to the care of the statesmen and women. It is the ordinary humans likely to suffer if the rule of law suffers. The ultimate subjects of international law are peoples. We should not make any fetish of statism in this area.

Nowhere is this clearer than in the role of international law in protecting human rights. It's the consummation of the point about trustee-ship. The analogy I have been arguing against sometimes is bolstered by a claim that treaties are like contracts, like the businessman is governed by contracts. That may be true for some treaties, but many are more like statutes. Students, be prepared to justify yourselves as advisors of governments -- not to liberals, law professors or New Zealanders, but to people who believe in the rule of law as the Founders did.

These are abstract remarks, but deadly serious issues. There are people in this room who have acted recklessly and in disregard of their responsibilities, and that have led to the dishonor of this nation. Some Democrats and liberals are inclined to talk about conspiracies to violate the law. It's important to focus on the culture and environment in which we do our thinking about the law. C.S. Lewis on human wickedness: Many of us have had the experience in some small pocket of human society, where the tone was bad. And inside that pocket, some actions were regarded as merely normal -- everybody does it. Some were regarded as efficient. But when we emerged into the world, we found that what we had regarded as impracticable virtue, other saw as minimum of decency.

People are emerging from having advised the Administration and having that experience. We need to think about the scruples and ideals that will allow us to reflect more scrupulously on our obligations.

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Prof. Rabkin (political science professor)--

To the extent that law has greater clarity than politics, it's because we have institutions to clarify it. We do not have those institutions reliably in the international law, so it cannot have that clarity of domestic law, which itself is subject to dispute. Let's not expect too much of international law.

At the level of abstraction talking about the rule of law, you could forget that international law is different. You need courts and police to enforce the judgment of the courts; to put together plausible materials is not enough. It is the view of the Founders, and the correct view. One of the great jurists of all time, called the father of international law, putting together a plausible series of arguments, showed that slaves had an obligation not to escape. Rousseau said whoever is persuaded by this argument deserves to be a slave.

Fundamentally, I think you cannot make sense of international law without understanding that it is international. This term was launched into the world in the same year as the U.S. Constitution. Bentham coined the term, a law between sovereigns, only inter-governmental, not the law of nations or of peoples (the earlier suggested term) that is what a lot of people had agreed on and not be able to change it within a country. This was persuasive, and within a few decades had spread into all Western languages except German.

The Declaration of Independence starts with an appeal to Nature and Nature's God, a separate and equal station among the powers of the earth. The right to decide for ourselves, not be ruled by some gathering of international treaty-makers. This is rooted in the right to defend yourself; we gather together to defend ourselves. You cannot defend yourself without establishing an authority who has the force to defend you. So the Declaration ends with a declaration of the right to levy war, to defend ourselves collectively, we Americans are here to defend ourselves. We began not with law but with a revolution in the name of our right to defend ourselves. What they are defending is not just right against attack but the right to pre-emptive defense. You strike first when you see someone is threatening you, or acting aggressively against others and thus a threat to you. Waldron's idea works in a world of good Kantians, but not in the real world. Sovereignty is valuable because not all states will see even the same treaty the same way.

Madison, whose profile appears on ties, says that the great thing about the federal government is that it will guarantee the states against insurrection and invasion. Happy would it be if a similar project could be established for the peace of all mankind. This is visionary, not something to be seriously expected. You cannot expect people to trust a universal authority to care about their protection, and it is amazing that we care as much as we do. When the WTC was attacked, people in Alaska said "We have been attacked." When Danish embassies were attacked, Europe said "You're on your own." Who will risk their troops for the massacre of people in Darfur? Possibly Nigeria, but probably not. That's why it's bad to live in a place like the Sudan.

International law is not the same as domestic law. It is not all the same law. Our government cares about defending us. Europeans are outraged by Guantanamo, because we keep terrorists behind barbed wire. What should we do with the terrorists? send them to Europe? (that would be good) The U.S. has not signed a treaty that says we must treat terrorists as we treat soldiers. I honor the lawyers who have advised the president to follow the constitution by protecting Americans, and I hope all of you when you grow up will do the same.

[uproarious applause]

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Q&A:

Q: Rabkin, how do you feel about a democratic peace?

A: I'm optimistic; in the modern world, democratic countries rarely go to world with each other. That's why I'm happy to see democracy being built in Iraq. Europeans say they have maintained peace since 1945 because of the EU, but why have we done this in the Americas without transnational government? If Germany were a nasty dictatorship, the EU could not constrain it. The countries that threaten us -- we've spent a lot of time at Federalist events making fun of France, an unreliable ally but not a threat -- cannot be so constrained. Half the UN is composed of countries governed by tyrants.

Q: Franck, you say look at these other nations and how they value international law, but aren't those countries that have very little power? So why should the U.S.?

A: There never is power equilibrium in any dispute. Guyana could probably demolish Suriname. But they find it useful to follow the law, as should the U.S. If we walked away from the WTO because we lost a case, why would anyone pay any attention to us the next time we brought a case? Can we get along with the WTO, probably not. It's more important to have a peaceful process for resolving the case.

McGinnis- The U.S. does tend to comply with the WTO, but that has to do with: the beneficience of the rules; not a dead hand problem like the UN; made by democratic nations, not totalitarian nations. The U.S. has plausibly said we were consistent with Article 51 of the Charter in invading Iraq, but even if we violated it, why does it matter for a charter made 50 years ago?

Q by T.More: McGinnis, why shouldn't the rule of law be what Federalists support? Waldron and Franck, what about the problem of institutional perversity?

Waldron: It's very important to distinguish between international institutions and international law. Nothing I said this evening had particular reference to the UN Security Council and the authorization of the invasion of Iraq. The particular issues I had in mind, the provisions protecting detainees, were the institutional apparatus of this country in attempting to subvert those agreements. International law is a dense web of action on which we depend, and for the most part in which we take a compliant role. I'm worried that by getting excited by the prospect of detaining people indefinitely, and acting like Jack Bauer on 24 in doing what needs to be done, we sell ourselves short.

Franck: The Security Council is a highly imperfect system, comparable to domestic imperfect systems. It represents the power of a few countries that could start another world war, and to stop the UN from doing something to which they are opposed. There was no veto used in the Iraq case; we never came close to a majority. When countries like Canada, Mexico, France and Germany tell us there's another way, if we had done that, what would we have lost? Something Adlai Stevenson, another person not a favorite at the Federalist Society, said: Don't do something, just sit there. The point that needs to be made is that what happens when you don't give a damn about the rules. If you don't like the rules, change them. If you hate the rules and don't think you can change them, walk out on them. We could walk out on the UN. If you sign the countries with 191 other countries, Senate approves the treaty, then live by the treaty or leave it.