Peter Berkowitz on new books on international law and sovereignty

Peter Berkowitz, of George Mason law school and the Hoover Institution, has written an important review of three leading books on the intersection of international law and sovereignty, here, in Policy Review:

Anne-Marie Slaughter. A New World Order. Princeton University Press. 341 pages. $29.95

Jack L. Goldsmith and Eric A. Posner. The Limits of International Law. Oxford University Press. 262 pages. $29.95

Jeremy A. Rabkin. Law Without Nations? Why Constitutional Government Requires Sovereign States. Princeton University Press. 350 pages. $29.95

"Among american law professors, international law became in the 90s and continues to be today what American constitutional law was in the 70s and 80s — the fashionable front line for advancing progressive social change. Yet even more than constitutional law, international law’s sources and authority are open to dispute. Even more than constitutional law, international law has an ineliminable and robust political dimension. And even more than constitutional law, international law invites an appeal to debatable moral principles in the controversies that arise under it. Despite these vexing features, the dominant view in the legal academy — which closely resembles the consensus among European elites and is associated with the European Union’s self-understanding — is that international law has an identifiable content and that its content corresponds to a progressive interpretation of government’s obligations at home and abroad.

The view is theory-driven and flies commonly under the flag of liberal internationalism. According to the liberal internationalists, a good portion of the structure and content of international law can be derived from reflection on our common humanity or, more precisely, our nature as free and equal rational beings. Such reflection generates an increasingly dense list of human rights that apply to all states everywhere; favors the strengthening of international institutions — such as the International Court of Justice, the International Criminal Court, and the un General Assembly and Security Council — to promote these rights; seeks an increased role for multilateral initiatives; and applauds the growing role of transnational nongovernmental organizations. In the United States, the liberal internationalist view draws support from the writings of America’s preeminent political theorist, John Rawls. In Europe, it gains intellectual heft from Germany’s foremost philosophical voice, Jürgen Habermas. Both theorize about the principles under which rational individuals, freed from partiality and prejudice, would choose to live and from which they can derive binding laws and equitable public policy. To be sure, international human rights lawyers are less likely to invoke the abstractions of Rawls and Habermas than they are to look to developing state practice, or the achievements of international institutions and the fruits of diplomacy, as evidence of what international law requires. Nevertheless, it is theory — or, perhaps more accurately, it is a moral and political conception to which Rawls and Habermas give theoretical expression — that determines for the scholars and jurists which examples of state practice, international institutions, and diplomacy they will appeal to as evidence of the structure and content of international law.

Critics raise a number of serious objections. First, officials of international institutions (to say nothing of ngos) charged with promulgating international law lack democratic accountability: Either they come from democracies but operate at several levels of remove from voters or, far worse, they come from autocracies in which the people whom they supposedly represent have never had a chance to vote for them in free and fair elections. Second, as most international institutions — possessing neither police force nor military — lack the capacity to enforce their rulings and resolutions, their legal pronouncements are impotent and make a mockery of the rule of law. Third, international institutions rely on the dangerous misconception that individuals do, or will come to, place a premium on global citizenship, and that states do, or will come to, place their obligations under international law and to global norms of justice ahead of their own national interest. In reality, the critics contend, individuals are inclined to put state, ethnic group, religious community, or tribal loyalties ahead of global citizenship. And considerations of raw power and refined national interest will, for states, always trump obligations that arise under international law."
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I strongly recommend the whole review.