The Limits of International Law
Jack L. Goldsmith
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International law is much debated and discussed, but poorly understood. Does international law matter, or do states regularly violate it with impunity? If international law is of no importance, then why do states devote so much energy to negotiating treaties and providing legal defenses for their actions? In turn, if international law does matter, why does it reflect the interests of powerful states, why does it change so often, and why are violations of international law usually not punished?
In this book, Jack Goldsmith and Eric Posner argue that international law matters but that it is less powerful and less significant than public officials, legal experts, and the media believe. International law, they contend, is simply a product of states pursuing their interests on the international stage. It does not pull states towards compliance contrary to their interests, and the possibilities for what it can achieve are limited. It follows that many global problems are simply unsolvable.
The book has important implications for debates about the role of international law in the foreign policy of the United States and other nations. The authors see international law as an instrument for advancing national policy, but one that is precarious and delicate, constantly changing in unpredictable ways based on non-legal changes in international politics. They believe that efforts to replace international politics with international law rest on unjustified optimism about international law's past accomplishments and present capacities.
captured Portuguese ﬁshing vessel and stated that the capture contradicted “the principles of humanity and the maxims of international law” (id., 693, quoting La Nostra Senora de la Piedad 1801), the British view of early nineteenth-century customary international law was, as the Supreme Court appeared to acknowledge, a truer description of affairs. Four observations are in order about this pre-1815 evidence. First, the paucity of evidence is noteworthy. The Court’s analysis focuses on relations
to coercion or economic bribes; they do not focus on larger states like China, Saudi Arabia, or Russia, where human rights progress has been slow and where coercion and bribes are less efﬁcacious. The rise of transnational NGOs concerned with human rights, a phenomenon greatly assisted by the communications revolutions discussed earlier, does not affect this analysis. Risse and Sikkink (1999) argue (based on some of the case studies described earlier) that NGOs such as Amnesty International can
as follows: “We are aiming not to exploit but to aid; not to subvert, but to help in laying the foundations for a sound, stable, and independent government. Our interest does not lie in controlling foreign peoples, [but] in having prosperous, peaceful, and law-abiding neighbors.” • China signed the International Covenant on Civil and Political Rights several years ago. Although it continues to violate the civil and political rights of its citizens, it claims that it acts consistently with
cooperative states will try to send signals that the other states are unable to afford. Any action will serve as a signal as long as its cost exceeds the beneﬁt that other states can obtain from imitating it. Costly actions might include paying a debt (Cole and Kehoe 1995), refraining from seizing alien property, respecting state borders, or resisting domestic discrimination against minorities.2 These acts are costly in the sense that, holding the response of other states constant, a state does
1984; Frey and Frey 1999; Fidler 2001) As we turn from the use of language to support a general reputation of cooperativeness to its use in speciﬁc international relationships, we also observe moral and legal rhetoric. Two states in a repeated prisoner’s dilemma coordinate on what move counts as cooperation, say, not searching neutral ships. Then one state deviates “by mistake.” That state’s navy employs captains who must exercise judgment in difﬁcult circumstances; some might opportunistically