International Law

There is an interesting op-ed in the LA Times about how pundits and political scientists in the United States get almost everything wrong, in large part due to taking too-narrow views of any given situation.  It notes the need for a “null hypothesis”, where any theory has to show it is better than simply a random sampling of outcomes.

This can of course be applied to international law in a number of ways, though law, above other fields perhaps, at least pretends to be predictable and actively strives to render the subject matter at hand somewhat more predictable.  There are any number of issues this brings up.  But here I wanted to at least raise the question of if part of international law scholarship is simply asking the wrong questions or also focusing on too-narrow debates.

Ongoing debates about the use of force, whether it is valid or not, etc. and often seen as a proxy for the validity of international law writ large.  So are inquiries into views on certain international institutions, particularly the UN.  Others, such as Jack Goldsmith and Eric Posner, for example, have argued that when it “really matters” (which is itself an issue), IL fails. 

But should different approaches be taken?  The environmental movement has long been international – and continues to make law no matter what happens with the Kyoto accords.  International law penetrates deep into financial markets, international trade, labor law, torts, intellectual property, etc. and one realizes the world is actually highly regulated, often using international law regimes, organizations, etc. with little or no fanfare.  Is this not “international law”?  When one thinks of what international “law” has to say on a particular issue, there is a lot more going on.  If one adds comparative law, especially outside of the United States (with South Africa’s comparative approaches as an obvious example) then the interactions get even more complex.

In Iraq, for example, the natural (and no doubt valid) leading issues for international law might be the use of force initially, the treatment of prisoners, occupation issues, self-determination, etc. etc.  On these fronts the validity, or more to the point, the “power” of IL, may seem very weak indeed.

But as others have shown, there is a huge mishmash of international investment law, international trade, drugs/crime issues, criminal tribunals with IL implications (though the predicted Grotian moment of Saddam’s trial may have been somewhat of an exaggeration – perhaps by the ultimately botched ending – but maybe the IL implications will still play out and be sure to check out the cite, along with Human Rights Watch’s summary of the trial), environmental issues, art law, tax law, etc., etc. and international regimes, paradigms, or spin-offs were and are being used, for better or for worse.  Of course security remains paramount, but that does not stop other rules from being in play.  As Naomi Klein pointed out a while ago now (I cannot vouch for her positions, but the article raises fascinating issues), an accelerated view of the Washington consensus, backed by mounds of “international law”, has long been in play in Iraq.  And the invalidity in one area, say the use of force, does not mean IL is doomed in other areas.  Sometimes this slanted view of IL might be a two-pronged attack — downplaying IL as invalid in some areas and ignoring it and its impact in others, for example by pretending that a free market or other environments are not made so through regulations, principles, ideals and institutions often borrowed from or reflected in some forms of IL (i.e. property rights, freedom of capital, supremacy of contract over social principles and across very different governments and regimes, etc).  There is a whole web of IL and forgetting this often hides IL’s power.  The point here is not to self-validate and “empower” IL (perhaps the ethos that Goldsmith and Posner were most disturbed by), but to question how various aspects of life are or are not at least in some way altered by IL, including by the discourse of IL, whether there is anything to “back it up” or not.  Of course, just because there is some international concern, and some occassional references to law, this does not mean there is “IL” going on.  If everything is IL, then perhaps nothing is.  But the contours of the field are worth considering, and efforts like the one by Goldsmith and Posner, whether you agree or not, are commendable.   

It is funny how the debates on some IL issues become localized to certain areas/discourses, with certain scholars focusing on limited fields.  Perhaps this is a necessary requirement in worlds of specialization and “expertise”.  I wonder if a map of the discourses, or a series of maps, would prove useful in seeing what is addressed and what is left out, at least in the US discourse. 

In addition, though somewhat different, Professor Tribe at HLS once drew a series of “constitutional law” diagrams trying to show the interplay of various rights, provisions, concepts, standards of review, etc. within the field.  Similar charts mapping out the terrain of classic arguments for IL (at least in the US for a start) might also be a useful exercise and might help think of the boundaries of what is viewed as “international law”, what is outside of it, what is viewed as second-tier IL and then only reluctantly, etc.  Perhaps if there is time, this blog will try it one day.