Law Beyond the State
Law Beyond the State Dynamic Coordination, State Consent, and Binding International Law
CARMEN E. PAVEL
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Library of Congress Cataloging-in-Publication Data
Names: Pavel, Carmen E., author.
Title: Law beyond the state : dynamic coordination, state consent, and binding international law / Carmen E. Pavel.
Description: New York, NY : Oxford University Press, [2021] | Includes bibliographical references and index. | Contents: Hume’s dynamic coordination and international law—Normative judgment, realism, and international law—The international rule of law—The compatibility of constitutional democracy and international law—Constitutionalism and pluralism : two models of international law.
Identifiers: LCCN 2020027364 (print) | LCCN 2020027365 (ebook) | ISBN 9780197543894 (hardback) | ISBN 9780197543917 (epub) | ISBN 9780197543924 (oso) | ISBN 9780197543900 (updf)
Subjects: LCSH: International law. | Constitutional law. | Rule of law. Classification: LCC KZ3410.P383 2021 (print) | LCC KZ3410 (ebook) | DDC 341.01—dc23
LC record available at https://lccn.loc.gov/2020027364
LC ebook record available at https://lccn.loc.gov/2020027365
DOI: 10.1093/oso/9780197543894.001.0001
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Printed by Integrated Books International, United States of America
To my mom Ioana
Cu afectiune si gratitudine, acum si intotdeauna!
Foreword ix
Introduction 1
1. Hume’s Dynamic Coordination and International Law 29
2. Normative Judgment, Realism, and International Law 58
3. The International Rule of Law 86
4. The Compatibility of Constitutional Democracy and International Law 111
5. Constitutionalism and Pluralism: Two Models of International Law 140
Conclusion 175
Notes 185
Index 191
FOREWORD
A few years back, at the start of this project, I was telling a colleague about a talk I was invited to give at another university. He asked what the talk was called, and I said, “Why Do We Need International Law?”
“Do we!?” he quipped sarcastically. I found this to be a common, albeit tactfully implicit, attitude among my colleagues in political science and philosophy. In these fields, international law is a relatively new, marginal subject. As distinguished from global justice, which has been getting increasing attention in political philosophy since the 1990s, or international relations, which has been on the radar of political scientists pretty much continuously since political science became a discipline, the rules and institutions of international law barely register as topics worth investigating.
I aim to change that. I am joining an energetic group of scholars working at the intersection of international law and political philosophy who highlight the important questions, dynamics, and effects of international law on states and individuals, such as David Lefkowitz, Jiewuh Song, Eva Pils, Steven Ratner, Andreas Føllesdal, Evan Fox-Decent, Evan Criddle, Fernando Tesson, Kit Wellman, Andrew Altman, Alejandra Mancilla, Samantha Besson, Allen Buchanan, and Leif Wenar. Their reasons for contributing to this emerging interdisciplinary field might be different than mine. My personal experience is that the more I learn about international law, the more numerous my reasons become. But chief among them are the following:
• International law is a very peculiar kind of law. If you ask, “peculiar in what way?,” the answer depends on our models of law, which are largely inspired by the operation of law in domestic, state-based contexts. International law is illuminated by our conception of law built on these models, but it also raises fundamental challenges for them. International law is important because it requires us to consider with fresh eyes the question: “What is law?”
• International law also changes the relationship states have to each other, through rules about the use of violence, permissible conduct in war, the division of territorial boundaries, and the exchange of diplomatic representatives. By determining their physical boundaries, access to resources, and the limits of their legal jurisdiction, international law constitutes states as entities with legal rights and responsibilities that set limits on and shape processes of internal governance.
• Most fundamentally, international law also shapes the relationship that states have with their own citizens, so it matters to individuals in a “first-personal” way. International law regulates international travel, communication, mail services, trade in raw materials, food, and clothing. It sets limits on the permissible ways governments can treat their citizens and foreigners, regulates access to goods and services, and enables states in or impedes them from achieving domestic policy goals that affect the welfare of their citizens.
All of these facets of international law make it a fascinating topic for political philosophy, which is concerned primarily with how to justify the authority of legal and political institutions. This book contributes to this justificatory enterprise by turning its attention to the authority of international law over states. It addresses skeptics which hold that international law should not have any, or much, authority over states. But it asks further what kind of international law ought to have such authority. Therefore, the book is not simply a defense of the status quo, but takes a critical look at
the ways in which existing rules of institutions may be defective from the standpoint of minimal requirements of justice and the rule of law.
This is a project that would not have started without the help and support of my good friend and mentor David Schmidtz and the staff, both academic and administrative, of the Center for the Philosophy of Freedom at the University of Arizona. They created an open-minded space and gave me the resources to go do my own thing, and for an academic there is no greater gift. The University of Arizona’s philosophy community remains for me a model of welcoming, open-ended engagement, and of the serious, creative exchange of ideas. Graduate seminars were (and I am sure still are) famous as places that welcome all those interested, and the balance of students and faculty was fairly even. Everyone enjoyed the business of doing philosophy in a relaxed, jovial atmosphere, which often continued over drinks. People like Dave, Jerry Gaus, and many others created the kind of intellectual community that comes closest to a philosophical utopia. I am grateful to them and my colleagues in the Freedom Center— Dan Russell, Steve Wall, Guido Pincione, and Michael McKenna—as well as to the graduate students with whom I worked and formed lasting friendships, such as Chad van Schoelandt, Danny Shahar, Sarah Raskoff, Brian Kogelmann, Jeremy Reid, Lucy Schwartz, and many others. Some of them sat in my Philosophy of International Law class and were outstanding and engaging conversational partners. Most of all, thanks are due to Gayle Siegel and Rosie Johnson for keeping everything afloat with their professionalism—and lovely snacks.
I have been fortunate to move from one ideal intellectual community to another. My colleagues in the Department of Political Economy (DPE) at King’s College London and in other parts of the college, particularly the Law School, have offered the essential intellectual support to refine and complete this project. DPE was started as an experiment ten years ago and is perhaps unique in the United Kingdom as a successful integrator of philosophers and political theorists, economists, and political scientists. In other words, it is a true Philosophy, Politics, and Economics utopia, which works not just because it was designed with this kind of interdisciplinarity in mind—it owes much to that—but because it nurtures some of the most
thoughtful, able, imaginative, and fun academics I know, who genuinely value each other and add value to each other’s work. A true measure of how lucky I feel to be their colleague is how much I miss spending time with them during this pandemic. I have been made to feel truly welcome at the Law School by John Tasioulas—who served until recently as the director of the Yeoh Tiong Lay Centre for Politics, Philosophy & Law—Eva Pils and her wonderful Human Rights, Development, and Global Justice seminar series, Ashwini Vasanthakumar, Lorenzo Zucca, Massimo Renzo, Leif Wenar, and many others. To them I owe the opportunity to engage on an ongoing basis with legal scholars and practitioners of international law, human rights law, international criminal law, jurisprudence, and legal philosophy.
I have presented this work before many audiences, all of whom have significantly shaped the final version. I thank the following audiences at these universities and events: the University of Arizona; the Global Constitutionalism conference at the National University of Singapore; the Brave New World conference at the University of Manchester; Legitimacy Beyond the State: Normative and Conceptual Questions Justitia Amplificata, Bad Homburg; The Political and Legal Theory of International Courts and Tribunals annual workshop PluriCourts, University of Oslo; University of Amsterdam workshop Should States Do It Alone? New Perspectives on the Legitimacy of Multilateral and Bilateral Power Structures; University of Hamburg; Cambridge University (Contemporary Political Theory Seminar Series); Oxford University (Nuffield Political Theory Workshop); McGill University (Legal Theory Seminar); University of Michigan Law School; University of East Anglia; Catholic University of Lisbon; UK-Latin America Political Philosophy Research Network Workshop; University College London; ECPR Joint Sessions Workshop; PPE Society Meeting; American Political Science Association Meeting; Eastern American Philosophical Association Meeting; and the ECPR General Conference. The individuals who have listened to, read, and engaged with the ideas in this book are too numerous to list. But special thanks must go to Lucy Schwartz, Brian Kogelmann, Stephen Stich, Cord Schmelzle, Antoinette Schertz, Andreas Føllesdal, Patrick Taylor Smith, Terry Nardin, Steven
Ratner, Evan Fox-Decent, Omar Farahat, Catherine Lu, Steven Ratner, Annie Stilz, Kim Henningsen, Dan Bodansky, Peter Niesen, Markus Patberg, Dan Russell, Duncan Bell, John Filling, Cecil Laborde, Dario Maestro, Luke Wilson, Kate Powers, Michael Frazer, Christopher Meckstroth, Francisco García Gibson, Jiewuh Song, Oisin Shuttle, William Hasselberger, Ashwini Vasanthakumar, Eva Pils, Evan Criddle, Paul Sagar, and Robin Douglass. My students Tereza Rasochova and Alejandro Martin Rodriguez provided invaluable research assistance in the early stages of the project. David McBride was a patient and supportive editor at OUP, and the two anonymous referees made important suggestions on the last version of the manuscript. All my work is an attempt to meet the high academic standards set by my PhD adviser, John Tomasi. I am grateful to him for not lowering the bar.
Versions of chapters 1 and 3 of this book have appeared in print or online before. “Hume’s Dynamic Coordination and International Law” appeared in Political Theory (forthcoming, online first), https://doi. org/10.1177/0090591720921831 (reprinted here with permission from Sage). “The International Rule of Law” appeared in Critical Review of International Social and Political Philosophy 23, no. 3 (2020), https://doi. org/10.1080/13698230.2019.1565714 (reprinted here with permission from Taylor & Francis). The first chapter has benefited from a John Templeton Foundation grant on “Philosophy, Politics, and Economics” while at the University of Arizona. The last two chapters have benefited from a John Templeton Foundation grant, project 60688 “The Ideal of SelfGovernance,” administered by the Center for the Study of Governance and Society at King’s College London. I thank my former colleague Emily Skarbek and current colleagues Sam De Canio and Mark Pennington for facilitating it.
It seems so strange to publish a book during a pandemic, to believe that ideas still matter, and to have the luxury to consider the long-term health of our institutions, when other, more pressing issues loom so large. I am grateful for the love and support of my family and friends, particularly my wonderful children, Carla and Luca, who have sustained me during the last year with board games, meals cooked together, jokes, and lots of
hugs. Jim’s friendship, good cheer, and willingness to walk long miles with me have been invaluable through the last stage of getting the manuscript ready for publication. Finally, I dedicate this book to my mom, to whom I owe everything.
September 2020
Law has a transformative potential. It can reduce conflict, protect rights, and facilitate cooperation. It emerges from the acceptance of the most minimal reciprocal limits on individual behavior, without which the simplest form of coexistence and interaction is not possible. Largely in incremental steps and sporadically in big leaps, law facilitates both the stability necessary for social cooperation and emancipatory transformation. Does international law have this transformative potential? In this book I argue that it does. In the twenty first century, international politics is increasingly governed by legal rules and institutions. Large areas of international relations are shaped by treaties that are regularly renegotiated and updated to reflect the needs and interests of an evolving global community. Treaties governing the sharing of airspace for flight routes, the division of territory and territorial waters among states, the exchange of diplomatic officials, the trade of goods and services, and the treatment of citizens and foreigners are creating a dense mesh of international rules to which states commit, not always wholeheartedly. This ambivalence is the result of states’ two conflicting impulses: on the one hand, the recognition that their own interests and autonomy are better protected by entering agreements which set limits on how other states behave, and on the other hand, the resolve to jealously guard their sovereign capacity to act unencumbered by constraints.
If grudging ambivalence is reflected in the external commitments of states, the writing of prominent scholars reveals far greater doubts about
the project of building a robust system of international law. Widespread skepticism of its value and transformative potential, and sometimes outright hostility toward it abound (for a summary of recent views critical of international law, see Ohlin 2014; Sikkink 2017). International law is said to be in turn inconsequential to state behavior, the product of irrational state action which goes against national interest in a world of anarchy, or detrimental to the project of democratic self-determination. These attitudes pervade all corners of scholarly dialogue, insofar as scholarly dialogue takes up international law as a subject worth understanding and evaluating. Eric Posner’s string of latest books aim to demonstrate the futility of international law when he says that “International law is [ . . . ] endogenous to state interests. It is not a check on state self-interest; it is a product of state self-interest” (Goldsmith and Posner 2005, 13). Due to the inherent inward-looking preferences of states, international law is incapable of creating order or solving collective action problems. Therefore we should maintain “a crisp analytic distinction between intrastate cooperation, which is capable of solving major nation-level collective action problems, and interstate cooperation, which is itself subject to collective action problems and thus cannot solve them, except in a very rudimentary fashion” (Posner 2011, 7). Posner is part of a new wave of legal scholars influenced by international relations realists, who are skeptical that the world can be explained in terms of anything other than raw power. Offering an ad hoc concoction of explanatory social science and normative analysis, realists such as Stephen Krasner say that “for realism, the central admonition for policy makers is that they must make prudent judgments. They must assess the consequences of their actions. They can never rely on moral precepts. Applying law and judicial proceedings to international relations reduces the likelihood of prudential calculations” (Krasner 2002, 267). This means in effect that states are better off ignoring the constraints of international law and may even be acting irrationally when they take them seriously. But skepticism is not just the purview of realists. More recently, Martha Nussbaum has claimed that international law is “leaching sovereignty away from the nation and its institutions, which are chosen by the nation’s people, and turning it
over to an international realm that is not decently accountable to people through their own political choices” (Nussbaum 2018). In Nussbaum’s view, law can only be the product of a democratic community creating rules according to standards of accountably and inclusion, which can be obtained exclusively within states. To think law beyond states is possible and desirable is to imperil democratic self-governance and place hope in a false idol of order and justice.
These sweeping claims demonstrate the necessity of a normative justification for international law. This book provides that justification. My argument is straightforward: the same reasons which support the development of law at the domestic level—namely the promotion of peace; the protection of individual rights; the facilitation of extensive, complex forms of cooperation; and the resolution of collective action problems—also support the development of law at the international level. We are faced with multiple problems of order, justice, and cooperation beyond the borders of existing states: global warming, cross-border criminal activity, largescale violations of human rights, health epidemics, failed states, wars, and refugees. Although some of these problems have been resilient due to timid and uneven efforts to address them, international law has made a significant dent in all areas of human cooperation and human rights.
The question of whether we need international law is parasitic on the question of whether we need law more generally. But it is importantly different. First, once we have a system or systems of law in place, as we do in most states except failed ones, it is not immediately clear that we need more law at the international level. More law is not always better. Therefore, international law needs its own justification. Second, the law governing the interactions of individuals and the law governing the interactions of states serve different purposes and have different functional properties. International law is made mostly by states setting standards of behavior among themselves. Currently it is made by states largely on a contractual basis, meaning that states are bound by treaties specifying basic rules of behavior at the international level only with their consent.1
Yet the reasons we might have for supporting a muscular, effective system of international law are not so different from the reasons which
support developing law in general. Any justification of law must start with the recognition that there is no one single purpose it fulfils. But one of the most important among them is the creation and preservation of peace and order. The creation of social order out of chaos and conflict is an impressive human achievement. Law and legal institutions can limit the use of violence, allow individuals to live side by side in peace, and enable participation in common projects. Legal practice has evolved over a protracted, unfinished history of trial and error, in the shape of idiosyncratic, contingent institutional forms, and it has been marked by uplifting progress and discouraging regress. The most successful legal orders of our time encourage respect for individuals, inclusiveness, prosperity, innovation, and cooperation. The least successful are found in places where one’s life and livelihood are at the mercy of opportunistic predators, insecurity and violence abound, and disease and poverty prevail.
Law can thus enhance the possibility of cooperation on a large scale, and it is against this assumption that we ought to understand and evaluate the genealogy and potential of international law. As the collection of bilateral and multilateral treaties, customary rules, principles and norms governing the interaction among states and the relationship they have with their own citizens, international law has yielded some impressive successes, which are left unexplained by those who question the viability of law at the international level. Among these successes are, the 1865 International Telegraphic Union; The Convention on International Civil Aviation (1944), also known as the Chicago Convention; the Declaration on the Granting of Independence to Colonial Countries and Peoples (1960); the United Nations Convention on the Law of the Sea (UNCLOS; 1982); and perhaps most surprisingly, the Montreal Protocol on Substances which Deplete the Ozone Layer (1989). The last of these has committed countries to eliminate the use of more than a hundred substances which have been shown to damage the ozone layer, it is the first treaty in the world to receive universal ratification, and as of 2010 it had achieved an astounding rate of compliance of close to 100% (Gillis 2018). These treaties represent a small cross-section of those which have helped states settle resource and border disputes, cooperate on international communication and travel, reduce the
use of violence, increase accountability for the actions of states, and solve collective action problems. In fact, most international law is effective, but compliance rarely makes the news. What makes the news are examples of dramatic failure. Among them are the Kyoto Protocol, whose aim was to set binding emission reduction targets aimed at bringing global emissions at 5% below the level of 1990 emissions. The protocol is largely considered to have failed, due mostly to poor design of the rules and incentives (Clark 2012; Rosen 2015). The World Trade Organization (WTO) has now almost ground to a halt due to differences between member states about the terms of international trade and the procedures for negotiating and creating new rules. Crimes against humanity, war crimes, and genocide continue to be features of our political landscape, from South Sudan and the Democratic Republic of Congo, to Syria and Yemen, to Myanmar and North Korea, despite many human rights treaties proscribing them as international crimes.
While some of these failures are the result of poor design of treaty rules and enforcement mechanisms, many are the result of deep structural problems in international law, such as the outsized role state consent plays in creating rules and generating legal obligations. Take the practice of reservations for instance, which allows states to sign on to a treaty but opt out of certain provisions. The Vienna Convention on the Law of Treaties (VCLT, 1980) allows the use of reservations only to rules which do not constitute the “object and purpose” of a treaty (Article 19) and offers a byzantine system of reciprocal validation of state reservation by other state (Articles 20–23). Still, despite limits on the use of reservations and important advisory opinions from the International Court of Justice (ICJ), in the absence of binding procedures to judge whether certain treaty rules are essential to the “object and purpose” of a treaty, states are left to judge for themselves which reservations are permissible. The consequence of the lack of an authoritative mechanism is that states use reservations liberally and virtually unrestrained. Therefore, it is no accident that the article with the most reservations in the Genocide Convention (1951) is article 9, which gives jurisdiction to the ICJ over signatory states to ascertain whether the crime of genocide has been committed and to hold them accountable in
case of direct involvement or failure to intervene in genocides occurring on their territory.2 The implication of these sets of reservations is that states are left unable to interpret the full scope of the convention; to resort to authoritative, impartial judgments about violations of its rules; and to take action to prevent violations or hold perpetrators accountable. Ironically, one of the most common reservations to the VLCT is to Article 66, which also gives jurisdiction to the ICJ to settle disputes, thus removing any institutional capacity to properly interpret and limit the scope of reservations in international law. This kind of ambivalence illustrates what Andrew Guzman identifies as a “Frankenstein problem.” States build international institutions to solve common problems, but out of fear of creating “monsters” with too much power, states are reluctant to give them real authority. The resulting institutions are not strong enough to solve the problems they were created for (Guzman 2013). This view challenges to some extent narratives about rational design of international agreements, which emphasize that states agree to what is rationally necessary for agreements to function well (Koremenos 2016).
This book responds to this ambivalence by offering moral and legal reasons for states to improve, strengthen, and further institutionalize the capacity of international law. The argument thus engages in institutional moral reasoning. It also shows why individuals should care that their states are part of a rule-governed international order. When states are bound by common rules of behavior, their citizens reap the benefits. States which accept limits on their behavior for the sake of international peace and justice will agree to not invade each other’s territory, to reduce externalities from their domestic activities abroad, and to accept minimal standards of treatment for the people living on their territory. International law encourages states to protect individual rights and provides a forum in which they can communicate, negotiate, and compromise on their differences in order to protect themselves from outside interference and pursue their domestic policies more effectively, including those directed at enhancing their citizens’ welfare.
A substantial and growing engagement with the morality of international law is emerging in the scholarly literature, but only indirectly with
the normative justification of international law. The existing contributions can be classified into three approaches. The first approach provides general moral principles and values as standards of evaluation of international law and suggests reforms to bring international law in closer alignment with these principles and values. For example, Fernando Tesón discusses the conditions that states must meet to be accepted as participants with equal standing in international law and argues that states failing to respect basic human rights are not worthy of that status. States that are most likely to respect basic rights are liberal democracies, and he mounts a defense of the Kantian idea of a confederacy of free republics as the basis of a community ruled by international law (Tesón 1998, 3–22). Allen Buchanan asks what reforms of international law would make it more just, understanding the justice of international law as a condition of its legitimacy (A. Buchanan 2004, 5). He makes a case that to be just, international law must give effect to basic human rights, and unless it does so, it does not deserve our allegiance (A. Buchanan 2004, 118–90). Steven Ratner applies peace and compliance with human rights as minimal criteria for the evaluation of the justice of international law and provides a cautiously optimistic diagnosis of its current performance and future direction (Ratner 2015). Catherine Lu engages in a historically informed critique of the institutional practices of international law, many of which insufficiently acknowledge the harms of colonialism and do not make room for the demands of equality and inclusion by colonized peoples (Lu 2018). Evan J. Criddle and Evan FoxDecent discuss a turning point in the evolution of international law that conditions the exercise of state authority on states’ willingness and ability to satisfy a variety of fiduciary obligations with respect to their citizens (2016, 13–22). This sea change enables international law to better reconcile the tension between states’ sovereignty and their obligations under international law (Criddle and Fox-Decent 2016, 94–106; Pavel 2015, 25–57). Jean Cohen and Turkuler Isiksel engage the growing focus on the constitutionalization of relations among states spurred both by the growth of international law and of sui generis entities such as the European Union (Cohen 2012; Isiksel 2016).
While these scholars are interested in whether the basic rules of international law meet certain requirements of justice, the second approach evaluates distinctive areas of international law from a philosophical perspective, such as international economic law, international environmental law, and international criminal law. For example, Leif Wenar has discussed the adequacy of the existing rules of international trade law and the extent to which they contribute to perpetuating relations of abuse and exploitation, particularly regarding the oil trade (Wenar 2016, 2015).
Darrell Mellendorf and Simon Caney have focused on what are the appropriate ways to structure the burdens of preventing global climate change (Moellendorf 2014; Caney 2005). Andrew Altman, Christopher Heath Welman, Larry May, and Jamie Mayerfeld have discussed the boundaries and justification for international criminal law as well as the institutions that can interpret and enforce it (Altman and Wellman 2004; May 2005; Mayerfeld 2001). The first and second approaches are not mutually exclusive, as scholars engaged in the evaluation of the international legal system as a whole often draw prescriptions for specific areas of international law, such as secession or humanitarian intervention, as Buchanan and Tesón respectively do.
The third approach develops a more skeptical perspective and claims that international law has little or no authority over states. States engage in empty promises and cheap talk when creating common treaties, institutions, and rules, and the latter have negligible effects on how states ultimately act. Some realist international relations scholars go further to argue that it is imprudent for states to follow international rules even if they could change how states act (Waltz 1979; Mearsheimer 1994; Krasner 1999, 2002). Legal scholars such as Jack Goldsmith and Eric Posner have adopted the realist language to argue that international treaties constitute cheap talk, and that when states agree to international rules, they do not see themselves as accepting any external constraints on their behavior (Goldsmith and Posner 2005, 83–106; Ohlin 2014).
A skepticism apart can be inspired by the work of political theorists who defend loyalties to bounded political communities as a fundamental obligation, meaning that citizens should see themselves as giving priority
to the demands of their political community over those of the international community (Stilz 2011; Miller 1997; Lefkowitz 2011). But no defender of this second kind of skepticism advocates a wholesale rejection of the authority of international law. Indeed, these moralized defenses of national loyalty are compatible with submission to general rules for states. The implication of these views is just that the balance should sway heavily in favor of state authority receiving the widest presumption for independence from outside interference, to give effect to the principle of democratic self-governance inside political communities. As such, moralized defense of the authority of states stand in sharp contrast to and should be separated from the radical skepticism of the value of international law inspired by realism.
Despite the wealth of recent work on international law, these three approaches either assume that the question about the reasons for asserting the authority of international law over states has been answered or deny that it is a meaningful question altogether, as representatives of realist skepticism do (Pavel and Lefkowitz 2018). The reasons for neglect in the wider philosophical literature reside in a lack of familiarity with international law and with the extent to which it governs so many areas which were previously considered exclusively the prerogative of sovereign states. This is understandable in an age of academic specialization in which combining two large fields of inquiry is limited by the need to master at least one field in order to maximize scarce professional opportunities. This book complements and extends the first two approaches by providing reasons to engage in international law building in the first place, and provides a set of reasons to reject the radical skepticism that informs some of the contributions to the third approach and to reconsider the right balance between obligations to states and obligations arising out of international rules characteristic of the moralized accounts of national loyalty.
Deep-seated skepticism that international law matters tends to dominate political and scholarly discourse and is fueled by the limits of theoretical models of orders developed in the context of sovereign states. Scholars and practitioners alike have difficulty imagining that the conditions of rule-governed social order can be met at the international level. Whether
it is the possibility of meaningfully institutionalizing international law without resort to some global leviathan or the concern that to the extent that it will be institutionalized, it is likely to be an expression of powerful states’ interests, understanding and evaluating international law amounts to an inconsequential distraction from the typical focus on the workings and legitimacy of domestic institutions and their attendant virtues and pathologies.
To understand why this kind of skepticism-fueled neglect misses a large part of the picture necessary to understand social order, we must appreciate the ways in which international law makes a critical, irreplaceable, and defining contribution to an international order characterized by peace and justice. Thus, the book has two distinct audiences. First, it speaks to those who are skeptical that international law can ever be more than an expression of powerful states’ interests. It shows that properly conceived, states’ interests require the development of a system of rules that allows them to protect themselves from each other’s interference, resolve conflict, and engage in long-term cooperative behavior. Second, the book speaks to those who are persuaded by the transformative potential of international law. It shows that a commitment to international law as a framework of rules is more demanding than even its supporters realize.
THE PARADOX OF COMMITMENT TO LAW
Our inability to see the value and possibility of international law can be explained in part by a generalized belief that states will simply refuse to give away their autonomy in order to agree to be limited by common rules in their interactions. The acquiescence to constrain their own actions could be considered an abdication of their sovereign independence. Nonetheless, the difficulty of constraining one’s freedom in order to enhance it is a well understood paradox of commitment in political science (Ferejohn and Sager 2002; North 1993; North and Weingast 1989; Holmes 1997; Isiksel 2016). The paradox is that “the ability to commit . . . expands one’s
opportunity set, whereas the capacity to exercise discretion . . . reduces it” (Shepsle 1991, 246).
James Buchanan called it the “paradox of being governed”: “[M]en want freedom from constraints, while at the same time they recognize the necessity of order” (J. M. Buchanan 2000, xv). Rules preventing others from committing violence enable individuals to exercise moral agency and to act on their conception of the good life, namely to exercise their freedom. But rules also restrain freedom. Herein lies the paradox of law: to be free, we need to accept reciprocal restraints on our freedom. Only when such restrictions are reciprocal can we reap the benefits of a law-governed social order (J. M. Buchanan 2000, 136). The cost of being part of the social order is that one accepts constraints on oneself. Law reduces unwanted, unjustified interferences from others with our own freedom, and it requires that we in turn be similarly constrained in our behavior toward them.
Subsequent practical and theoretical advances have illuminated two levels on which this paradox exists. The first is the individual level, and it involves the difficulty of accepting constraints on one’s freedom for the sake of greater freedom for all. Social contract theorists such as Thomas Hobbes, John Locke, Immanuel Kant, and Jean-Jacques Rousseau recognized this paradox and sought to explain why accepting the constraints imposed by law is an act of rational self-government (Hobbes 1994; Locke 1988; J.-J. Rousseau 1987; Kant 2017). By accepting the requirements of law, we become freer than before. The removal of physical danger and uncertainty from a world of absolute individual freedom creates space for individuals to plan their lives, to exercise their moral, mental, and physical capacities to the fullest, and it facilitates complex projects of social cooperation.
The second level obtains at the intrastate constitutional level, and it involves restrictions on the use of political power for the sake of institutional effectiveness. Turkuler Isiksel aptly documents the way constitutional politics reflects this paradox (Isiksel 2016, 41–45). Once kings began to accept the idea that they were bound by law, trust in the monarchy grew, and monarchy itself was reinforced, even while political power was divided through the multiplication of sites of authority (Holmes 1997; North and Weingast 1989). Although power was shifted away from the king and
