Wednesday, August 24, 2005

Michael Glennon's "How International Rules Die"


Coming back from vacation, I found in my mailbox a reprint of a new and superb article by Tufts international law scholar Michael Glennon, "How International Rules Die," 93 Georgetown Law Journal 939 (March 2005), available at SSRN here. Professor Glennon has been working on this theme with respect to the Security Council and the use of force for several years, with important articles in Foreign Affairs and Policy Review, among other places. This new article is pathbreaking in international law in seeking to give a general account of how international rules fall into "desuetude" and lose their force. Here is the abstract from SSRN:

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"A rule's abandonment through nonenforcement or noncompliance is known as desuetude. This article presents a theory of desuetude that applies to international legal regimes, taking into account the broader context of obligation, causation, and social norms in a consent-based system. The UN use-of-force regime is an example. The theory is that excessive violation of a rule, whether embodied in custom or treaty, causes the rule to be replaced by another rule that permits unrestricted freedom of action. The two rationales commonly given for obligation in the international order, the naturalist and positivist theories, are unconvincing. The rational choice model is a preferable explanatory tool because it provides practical reasons for supposing international rules to be obligatory, and it uses a more reliable means of assessing practical obligation, namely, frequency of violation. Two competing claims - that international legal rules are all that matter in shaping state conduct, and that those rules do not shape state conduct at all - are examined and rejected. Whether a particular rule falls into desuetude depends in part upon the presence of conditions necessary for international cooperation. Those conditions are associated with social norms that undermine or reinforce international legal rules, and also inject elements of coercion into a consent-based system; an infrastructure of reinforcing sub-legal norms is a necessary condition for law's effective operation. The article concludes by considering the dilemma faced by an international law scholar who recognizes that commenting upon the desuetude of a preferred rule can hasten the rule's demise."
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Beyond the profound consequences of the theory itself, Professor Glennon explicitly recognizes, in the conclusion, that international law scholars face a tension between what they would like the law to be and what, if they are faithful to the facts of how international actors behave, the law is. He purports to be offering a descriptive account of how, in fact, international rules sometimes do fade and fade away. No one seems much worried in the case, for example, of the Third Geneva Convention's now-quaint requirement of payment of five Swiss francs per day to POWs under certain conditions. In the case of something seen by many to be as important to their dreams of world order - Article 2(4) of the UN Charter, for example - it seems to them necessary to perform whatever rhetorical ledgerdermain is required in order not to reach the point of actually acknowledging the rule as dead. Glennon objects to this as inconsistent with the obligation of scholars to acknowledge the facts in front of them. The theory is not likely to endear him to the traditional liberal internationalism of the academic international law community, and even less so the implication of Glennon's conclusion about the agenda driven nature of some purportedly descriptive international legal scholarship. Here is an excerpt from Glennon's extraordinarily powerful conclusion:

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IV. THE SCHOLAR’S DILEMMA

In considering whether a preferred rule has
fallen into desuetude, international
law scholars sometimes confront a
dilemma. On the one hand they are,
like all scholars, expected to be truth
tellers. Their research describes what
international rules are and, sometimes,
explains how the rules got that way. If
the view of international law that I
have presented is correct, their research will
sometimes affect how states behave,
because states’ behavior is affected by
international law. But international law
scholars are also citizens. As citizens,
they have views about how states should
behave. Consequently, they might find
that their research as scholars leads states
to behave in ways that they might as
citizens oppose. Should they, therefore, mold
that research to promote the policies that
they favor as citizens? Which persona should
prevail, citizen or scholar? ....

As I have suggested in this article,
the moralists’ fears are not without
foundation. Reflexivity pervades
international law. Appearance alters reality and
reality alters appearance. Pretending that
a rule exists when it does not can, in
the short run, reinforce or even create a rule.
For at least a while, states may honor such
a rule. Sometimes, pretending works. But in
the end, that choice is the wrong one. In the
long run, if the conditions necessary for effective
law are not present, a rule will fail and the rule
of law will be the ultimate loser, for law reform
is not advanced by ignoring evidence of an old rule’s
collapse or of the absence of conditions needed
to make a new rule work. Humanity is not elevated
by the suppression of data, insight, and ideas,
either through self- or external censorship.
Moralist propaganda is not scholarship. Its aim
is not to expand the marketplace of ideas but to
contract it, not to enrich human understanding
but to evade it, not to serve the intellect but to
trick it. The contest, to paraphrase Hans Morgenthau,
is not, as the propagandists insist, between morality and
immorality, but between one type of political morality
and another type of political morality; one taking
its standard from subjective preference masquerading as
universal law, the other recognizing the inescapability
of relativity, contingency, situationality and
incommensurability; one viewing legal rules as
unaffected by power, the other recognizing that
legal rules are created by power; one viewing
obligation as preceding experience, the other viewing
obligation as flowing from experience; one marching to
the beat of presupposition, ideology, and dogma, the
other taking its cue from the possible, the practical,
and the pragmatic; one proceeding from certainty
and faith, the other from doubt and skepticism.

In the end, the moralists’ strategy is wrong because
it rests on a bad bet. The bad bet is that the increase
in long-range stability accomplished through delusion
will outweigh the discredit done to international law
by pretending that its rules are different than they
actually are. The bad bet is that tilting the table of
international law toward overspecification of rules
is more likely to benefit humanity than an honest,
more limited assessment of what the rules really do.
The bad bet is that relevant publics are not smart enough
or responsible enough or far-sighted enough
to deal with the truth.

My bet is that the big loser in this game will be
international law. It lost in the past, when legitimate
efforts at law reform were undercut by international law
scholars who “contracted the habit of pleading that a law
of peace which is continually ignored was none the less a
‘law’ of spotless character and beyond reproach;
what is more, these scholars adopted the tactics of
concealing from themselves the dangers of that situation.”
Those words were written three years before the
German invasion of Poland.

International law has lost enormously over the years
by overstating claims of its success. The result is that,
like a government that wrongly claims solid intelligence
of weapons of mass destruction when there is none,
international law is less likely to be taken seriously
when its claims are true. Better, it seems to me, for
international lawyers to be honest with themselves
and their clients and the public, painful as that might be ....

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By all means read Professor Glennon's profound and provocative article.