The Assault on International Law

| March 10, 2016
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51jMbb-RhwL._SX329_BO1,204,203,200_The Assault on International Law, Jens David Ohlin (New York: Oxford University Press, 2015), 304 pp., $29.95 cloth.
doi:10.1017/S0892679415000672

In the wake of the second Iraq war Jacques Derrida and Jurgen Habermas, two of Europe’s leading intellectuals, wrote that the United States had abandoned the vision of the rule of law in international affairs. The post-World War II ideal was being replaced with a concept of American exceptionalism—the unilateral projection of power (including force) in the service of a universalizing political morality, purportedly rooted in distinctive American values of democracy and freedom. In The Assault on International Law, Jens David Ohlin—an accomplished scholar of the law of war and a professionally trained philosopher—sees the threat to international law in a rather different light.

Ohlin identifies the menace, or at least its intellectual core, with the ascendancy not of a new moralism but rather a “New Realism,” as he calls it, espoused by a small group of international legal scholars, most notably Eric Posner of the University of Chicago. The New Realism, drawing on various theories that postulate rational self-interest as the foundation of state behavior, questions whether international law can ever compel or even guide states to act differently than according to what they perceive as in their self-interest at a given point in time (see especially pp. 12–13). For the New Realists, law becomes merely a language of justification or apology for conduct determined by the deep structure of power relations between states.

Ohlin seeks to expose what he regards as the shaky social scientific and philosophical foundations of New Realism. While others, such as Ruti Teitel and I (in “Beyond Compliance: Rethinking Why International Law Really Matters,” in Global Policy), have questioned the behaviorist “rational choice” view of the human condition that is the starting point of the New Realists, Ohlin’s critique is more internal. He proposes an alternative model of rationally self-interested conduct that can explain legal constraint or obligation as an important mechanism for achieving utility in the long run and preventing opportunism in the short term. Thus, for Ohlin, giving in to the temptation of noncooperative behavior can lead to almost immediately recognizable harms to self-interest as it is rationally understood.

Yet the bulk of Ohlin’s book is not devoted to theoretical engagement with the foundations of New Realism. He adopts the pose of a combative public intellectual, forcefully countering some of the claims against international law made in legal and political discourse, not so much by the New Realists themselves but by mostly conservative  legal and political actors that (Ohlin claims with only partial persuasiveness) are under their thrall. Ohlin deserves considerable praise for directly taking on some of the most strident and visible critics of international law—this while many among international law’s old guard have simply buried their heads in the sand or thumbed their noses at the New Realists, rather than expend the intellectual effort necessary to confront them.

Ohlin’s treatment of the law of war is particularly effective in this regard, no doubt bolstered by his own professional specialization in the area. The attack on international law by legal scholars allied with the political right unquestionably had its low point with the George W. Bush-era torture memos, and in particular the efforts of John Yoo in the Justice Department. Ohlin argues that the law of war does not in fact unduly constrain the United States in the war on terror; that its rules of engagement are well-suited to so-called asymmetrical warfare; and that its underlying logic does not, as some conservative legal actors claim, put military commanders and soldiers in a human rights straightjacket that increases their vulnerability. He shows that the law of war is something that armies need, and that it has as much a role in licensing the use of lethal force as in regulating it. Reading Ohlin’s account, one is not surprised that the attempt by civilians in the Bush administration to corrode or corrupt the law of war was particularly disconcerting to the country’s military officers.

Ohlin views the caution of the federal courts and the U.S. Supreme Court in alien tort cases as somehow part and parcel of the same attack on international law. This is questionable, as these cases raise complex issues about the relationship of U.S. law and courts to foreign law, as well as the role of the federal courts in evolving the common law. (For more on this, see Ruti Teitel, Humanitys Law, ch. 7.) While I do not, some might view the exercise of civil jurisdiction by U.S. courts over human rights violations elsewhere in the world as a form of U.S. unilateralism (if not exceptionalism) at odds with the traditional international law concept of the equality of sovereign states—a concept that Ohlin strongly endorses.

Ohlin’s alternative rational choice model offers an attractive critique of the notion that rational self-interest is incompatible with accepting legal restraint as an obligation (at least where there is no “sovereign” to enforce commands). Yet Ohlin does not fully rise to the New Realist challenge. However applicable to state behavior (or, indeed, to human behavior in general) the game theory deployed by Ohlin may be, the social scientific tools he employs give no account of why law is essential to rationally self-interested cooperation between states over time.

This is illustrated by one of Ohlin’s central examples, the nuclear deterrence achieved during the cold war by the doctrine of mutual assured destruction (pp. 132–140). Both the United States and Soviet Union, or more precisely their leaders, perceived a strong rational self-interest to avoid the worst outcome for everyone, nuclear annihilation, and thus exercised restraint in the use of force to avoid escalation. Yet international law played little if any positive role here. Indeed, as Ohlin discusses—and as the messy outcome of the advisory request to the International Court of Justice on the legality of using nuclear weapons illustrates—international lawyers could not but have some real ambivalence about this form of mutual self-restraint, premised as it was on the preservation of nuclear arsenals capable of annihilating the planet. Without a richer view of what it is to be human than is offered by rational choice approaches, it is hard to truly defend international law against the challenge of realism, new or old. The final chapter of Ohlin’s book regrettably veers into apologetics for existing institutions and practices of international law. Ohlin may well be effective in showing that the attacks of the New Realists on the United Nations, the International Court of Justice, and the International Criminal Court are exaggerated and highly misleading. He may also be correct that his rational actor approach would support participation in some of these institutions. But the fact that there are important rationales for multilateral cooperation, and that these institutions are under attack by those hostile to such cooperation altogether, does not justify turning a blind eye to their significant legitimacy problems.

To echo a comment by Leo Strauss about democracy, to be friends of international law we must not become its flatterers. Ohlin ultimately misidentifies the core of the attack on international law, because what is fundamentally under question is international law’s legitimacy and its capacity to uphold certain human values (those reflected, most explicitly, in human rights law). Ohlin’s book abstracts from human rights as the central battleground between the enemies of international legal order and its defenders; at most points, he is defending an older, state sovereignty-centered international law reflected in established institutions, as well as relatively traditionalist views of these institutions. But a stronger defense of international law requires engaging with ideas of legitimacy and humanity; it is these concepts that offer a more fundamental critique of existing institutions, and that can provide us with new ideas for reforming them.

—ROBERT HOWSE

The author teaches international law at NYU Law School. His current project, with Ruti Teitel, is “Law and Global Order,” a study of the role of law in contemporary international politics and economics.

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Category: Book Review, Issue 30.1

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