Friday, November 04, 2005

Conference on "The Limits of International Law"

Last weekend, I went to the University of Georgia law school, in Athens Georgia, for a conference on Jack Goldsmith and Eric Posner's new and provocative book, The Limits of International Law. It was put on by Peter Spiro and Dan Bodansky of the UGA international law faculty, and my great thanks to them and to Laura Tate Kagel, who did the logistics and organization. It was a fabulous meeting - the fact that it was small allowed participants to talk directly and engage with the book and its authors, both of whom were there. Great meeting, and my thanks.

The major claim of The Limits of International Law is that states fundamentally act from their interests - however they define them - and that what they regard as international law and how they interpret it reflects that fact. It makes some strong subclaims, perhaps the most important being that customary international law, even within international law generally, simply doesn't exist beyond what states do in pursuit of their interests. It also makes strong claims on the methdological front, applying a simple rational choice-game theory model to model state behavior in relation to international law. The political consequence of these claims is to argue that international law is of only limited effect influencing, let alone constraining, state behavior - the views of the older generation of Henkin, Koh, and others notwithstanding.

Nearly all the participants had strong criticisms of the book - unsurprisingly, since the claims are so strongly put. I think some of the claims are overstated - for example, I think that as the game theory and rational choice models become more sophisticated over time, some of the claims that the book makes will turn out to be wrong. But in general, I think its rationalist take is correct as far as it goes. Something like its descriptive account of international law is right, although it won't turn out to be precisely what the book says it is.

I'll have more to say about this as I prepare my own paper for publication in the special issue of the school's international law review. In the meantime, my thanks to Peter, Dan, and Laura for arranging this splendid meeting.

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