The Cult of "International Law":

I've noticed in a variety of contexts that there are some rather well-educated, articulate individuals out there who have what seems to me to be a fanatical, quasi-religious belief in "international law", and the idea that it should trump any other conflicting consideration. In the constitutional law field, this is reflected in the argument that the president and the courts should ignore domestic law and the Constitution if they conflict with international law--even if the United States isn't a party to any binding international agreements on the particular subject at hand.

On a more personal level, I've had a few email conversations with Volokh Conspiracy readers along the following lines:

Reader: Israel is illegitimate because it violated international law by not allowing Palestinians who fled Israel during the War of Independence to return.

Me: I'm not an expert on international law [UPDATE: For the record, and in response to some of the comments below, I'm not conceding that Israel did indeed violate international law in this matter. I don't know anything about it, though comments below and an email I received cast grave doubt on the matter. But I didn't argue the point in my correspondence] but I do know something about Israeli history. There is no practical way Israel could have permitted the return of most of these refugees. First, the Palestinian and broader Arab leadership remained committed after the war to Israel's destruction. The Arab community within Israel's border had participated in the war against Israel. The immediate result of allowing hundreds of thousands of generally hostile Arabs back into Israel (which had well less than a million Jewish residents at its founding) would have been constant intercommunal violence and ultimately another war. You can't expect Israel to have committed national suicide.

Reader: International law says Israel had to do it anyway.

Me: But Israel was busy resettling hundreds of thousands of Holocaust survivors, as well as hundreds of thousands of refugees thrown out of Arab countries, many of whom had to live in tents for years. Israel simply didn't have the resources to deal with those problems and also deal with trying to resettle hundreds of thousands of hostile Arabs.

Reader: Doesn't matter, Israel was violating international law.

Me: But most of the refugees moved only a few miles from their original homes, to places where the culture and language was often indisinguishable from their hometowns. It was like moving from Brooklyn to Queens. Surely the Arab countries that had participated in the war against Israel, and had egged on the Arabs of Palestine to launch a war against the Jews, should have simply funded the resettlement of the refugees. Indeed, even the money that has gone to UNRWA over the years from the West would have more than sufficed. Instead, the Arabs preferred to use the refugees as a propaganda tool, and canon fodder, against Israel.

Reader: All well and good, but Israel was in the wrong, because it violated international law.

I'm not exaggerating when I say that I've had several correspondences along these lines, none challenging the points I raised (though not necessarily assenting, either), but simply arguing that any such points are completely irrelevant, because all that matters is whether or not Israel violated international law.

It has struck me that debating such people is just as frustrating and unproductive as arguing with a religious believer about some matter within the scope of his religious belief--just substitute "God says so" for "international law says so."

The point of this post is not to defend the points I made in my email correspondence, but to ask informed readers about when and how "international law" gained such cult-like status that well-educated people believe that merely invoking it (or their interpretation of it) is sufficient to settle even the most nuanced and contentious debates, that it should always trump domestic law, etc. Please restrict your comments to either explaining, or, if you are so inclined, defending, this phenomenon. (Or is "international law" largely invoked to try to restrain the actions of the U.S. and Israel, but largely ignored more broadly?--e.g., I haven't heard of any other nation's besides Israel's legitimacy being questioned because of past or even present real or imagined violations of international law.)

Cornellian (mail):
I frequently see "international law" used as a mere cover for "those are my political preferences." I think it's just a desire to add a certain aura of legitimacy to what would otherwise just be someone's opinion. Why is it more prevalent now? Probably just a function of our neverending linguistic inflation in all kinds of areas, not just this one.

Arguably, "international law" doesn't even deserve the term "law", at least in the sense that ordinary Congressional and state statutes are law, but that's a different issue.
6.27.2006 1:17am
Bobby B (mail):
International law only gained such status when its proponents could not make their ideological points concerning issues within this country using our own body of law.

Later, it was convenient to use this body of "law" to justify anti-USA positions as we had influence in other countries.

When "international law", more and more, seems to consist simply of the opinions of other countries' liberal contingents concerning the correctness of the decisions of the leaders of the USA, the current decisions of the leaders of the USA seem to get short shrift.
6.27.2006 1:19am
Justin (mail):
Way to knock down those strawmen.
6.27.2006 1:23am
Justice Fuller:
For conservatives, it's "originalism."
For libertarians, it's "the market."
For some on the left, it's "international law."

It's always something, I guess.
6.27.2006 1:30am
ras (mail):
It takes a <strike>village</strike> mandated collective, properly licensed as a recognized administrative unit.
6.27.2006 1:45am
18 USC 1030 (mail):
I must admit, I'm one who does, in many cases argue for the adherence to international law. And, I believe international law cannot be trumped by state law--international law IS domestic law. The real question is: what is meant by international law? There is no way, for example, to argue that one ought not follow a treaty as it is not law. The value of treaties as law is expressed in the Constitution, in fact the Federalist, I believe 63(?), explains the importance and value of treaty adherence. I believe treaties to be binding law-- unless the state rescinds their ratification. When it comes to Customary International Law, there are very few crimes that which actually fall under a category that mandates adherence, and these crimes have been considered such, with slight modification since the time of Grotious. Much of the rest of "international law" is not law, but rather is forward thinking suggestions as to how states ought to co-exist. These ought to be followed as much as possible, but there is no binding nature on a state to do--nor should there be.

My issue is that there are people equally ignorant on both sides; those who say international law has absolutly no purpose whatsoever and is merely a joke put forth--usually by psychotic liberals, and those like the professor speaks of that say Israel violated international law and nothing else matters, and that the Constitution of the United States must be changed in order to comply with international law. International Law is to be obeyed at all times specifically because no treaty should be entered into that which violates current US Law. International Law has been around since Grotious, and in an even more elementary form dating back to the Romans. International Law ought to be embraced by all--so long as it is defined correctly.
6.27.2006 1:46am
Justin: which strawman are you referring to? There are so many...
6.27.2006 1:50am
Randy R. (mail):
You must go to jail because you broke the law by stealing bread.

But I was starving, and if I die, my family will be destitute.

But you broke the law.

Yes, but I did so to survive -- you expect me to commit suicide?

But you broke the law.

Yes, but the baker had way too many loaves -- he couldn't possibly have sold that many. In fact, yesterday, I saw for a fact that he threw out dozens of loaves.

But you broke the law.

Yes, but if my family becomes destitute, they might join a terrorist organization to right the wrongs of the world. They might make the world really really dangerous.

But you broke the law.

Since when has criminal law gained such a cult-like status that well educated people believe that by simply invoking it, it settles the debate? Dont' you know that there nuances, excuses, and moral issues to be debated here?
6.27.2006 2:21am
Randy, now you are the one dealing with straw men. The reason we have the criminal law is so that people don't go around stealing bread or lopping off heads or what have you. The reason we have international law is... to serve as a rhetorical point, since it is not clear what useful function it actually has, and it has no means of enforcement. My life and your life are better because of criminal law. I'm not sure whose life is made better by "international law" other than a few lawyers in Benelux countries.
6.27.2006 2:32am
Beerslurpy (mail) (www):
International Law is a pile of lies anyway. As long as nation-states have sovereignity, laws will always fail at borders. The reach of laws regarding men can never truly be international.

As for nations actually constraining their own behavior based upon an unenforceable code of conduct, yeah right. Simply put, might makes right when nations are concerned. If they arent worried about stepping on the toes of a bigger power than themselves, most nations act like cave men towards one another.
6.27.2006 2:35am
Christopher Cooke (mail):
I am not sure there is a cult of international law, such that its adherents are irrational, I think it is an argument that sometimes is used in support of a position. The Bush administration argued that Iraq's defiance of two UN Security Council resolutions justified our invasion of Iraq. The Arab world pointed out that Israel continues to defy UN Security Council resolutions regarding its borders, and yet we don't overthrow Israel.
6.27.2006 2:51am
Concerned Reader:
International law is not unenforceable because it always fails at borders: Just ask the sovereign nations of Iraq, Afghanistan and now Iran, each of whom would disagree that international is not enforced. It is however, selectively enforced because of the anti-democratic structure of the UN.

Though I cannot fathom your Reader's recalcitrance and I certainly understand the concepts of justification and excuse, I find modern day apartheid-like conditions (not to mention the construction of the wall) within Israel much more objectionable than the fact of its existence. Thank god for friends in high places.
6.27.2006 3:09am
steve k:
The Palestinians also regularly defy UN resolutions, but since this form of "international law" is actually politics, no one in the UN gives a damn.

By the way, many of the resolutions against Israel are not binding, unlike those regarding Iraq.
6.27.2006 3:38am
A. Zarkov (mail):
If Israel is somehow in violation of international law because Arabs who fled can’t return, then Europe has a big problem. After WWII 16 million ethnic Germans were forcibly relocated. Ethnic Germans were expelled from Czechoslovakia (the Sudeten Germans), Hungry, Romania, Yugoslavia, Baltic States, East Prussia, and Poland. There were also expulsions of Poles, Ukrainians and Jews. You were expelled solely on the basis of your ancestry. The property of the expellees was confiscated without compensation. For example the Benes decrees stripped Sudeten Germans of all their property real and personal. Estimates of the number killed by the expulsions vary from 1 to 2 million.

Needless to say a lot of expellees would like their property back. We also have Europeans living in houses taken from the Jews demanding that Israel provide a “right of return” for the Arabs. Remember the population shifts in Israel and Europe took place at about the same time. Moreover some (if not all) of the Arabs fled Israel, whereas the ethnic Germans, Poles, Jews etc, were expelled. After all many Arabs choose to remain in Israel and were allowed to do so. So if Arabs have a right of return under “international law,” then so do a lot of other people. Why can’t the Sudeten Germans have the same “just cause” as Palestinians? I guess the difference is the European expellees don’t go around blowing people up, hijacking airplanes and killing Americans.
6.27.2006 3:42am
Alan K. Henderson (mail) (www):
Afganistan's Taliban government was allied with al-Qaeda, which had declared war on the US, so that conflict isn't exactly an example of international law enforcement.
6.27.2006 3:45am
randal (mail):
"to ask informed readers about when and how 'international law' gained such cult-like status that well-educated people believe that merely invoking it ... is sufficient to settle even the most nuanced and contentious debates"

Let's not be silly. International Law is like the curfew for minors - it's there to invoke when convenient. It's not meant to be applied consistently, or even have a serious basis in sound policy.

I think the reason people like to use International Law against Israel is that Israel is pretty obviously "in the wrong" in the sense that they sortof stole a bunch of Arab lands and situated a nuclear arsenal on them. International Law feels like the only legitimate vehicle for bringing recognition to that wrong. I don't think International Law enjoys the same general revere as, for example, the "Constitution in Exile", but it serves in a pinch.
6.27.2006 5:18am
logicnazi (mail) (www):
I will post more later but real quickly the problem with these claims about israel isn't that they insist that all countries follow near universally accepted laws even if they didn't sign them. This is a reasonable principle and one we don't flinch from applying to people. Rather the problem is that they aren't applying anything like law in the first place.

If Israel was being condemned for violating a law, rather than just a vague moral/political principle, it would be necessery to show they indeed were technically in violation of the law and that countries that are technically in violation of the law are usually condemned. The flagrant disregard for any legal technicalities in the arguments against Israel or the invasion of Iraq (were we still at war with them, did Israel technically take civilian land or Jordanian government land) shows that what is going on is not a legal discussion but a moral discussion in disguise. Moreover, the lack of any indignation or condemnation for other violations of this law that are generally regarded as good (NATO's role in serbia I think) proves that it is not actually any legal point which is justifying the condemnation. As such it cannot have extra force above and beyond the moral dispute itself.

Or to put it differently technicality is the soul of the law for a good reason. It is only by having a precisce well understood statement of a law and condemning anyone who violates that statement that the law has any advantage over individual moral intuition. When you have vague principles or idealistic statements you have no guarantee there is any agreement on what they mean even if everyone assents to them nor do such principles help build consensus as to how one can act.

Ultimately I am very troubled by the use of these 'international law' arguments as proxies for moral or political arguments. I think it is very important to develop a strong system of real international law but this can only happen when countries can be confident that the treaties they enter into will be interpreted to mean what they say. If countries think that technicalities will be eschewed for some supposed principle behind the law they can't be sure their treaties won't be interpreted to go beyond what they were willing to accept and the progress of international law will be stymied. This is one of the reasons I find the various international judicial bodies so troubling. Since the few deciscions I have read seem to read more like moral tracts than clear analysis of the meaning of the treaty I fear they strongly discourage any country which doesn't share the majorities moral outlook to eschew signing anything that sounds like more international law.
6.27.2006 6:42am
logicnazi (mail) (www):
Or more succinctly in order to qualify as a good argument the supporters of international law would need to show both that these things were technically (and not just in spirit) violations of international law and that the world body doesn't just look the other way when it sees violations it doesn't mind.

I have yet to see the supporters try to get into the legal technicalities much less meet this burden and short of such a showing it seems this is just a clever way to dress up moral disapproval.
6.27.2006 6:46am
The Divagator (mail) (www):
A question for VC readers--

Isn't it true that all "international law" as such is treaty-based? If a country doesn't like a "law", can't it just leave the treaty. Of course, I suspect there are those who believe such laws have some greater legitimacy, tho I fail to see it.

This would be an excellent area for VC to bring on a scholar in that field, preferably a thick-skinned moderate who enjoys kicking the can around a bit. Thanks for the post.
6.27.2006 6:59am
While Israel ay be a secial case, I think that many supporters of International Law believe that is does (or should) trump national law the way federal law trumps state law (or EU law trumps member state law). Legally this is poppycock and I certainly no longer believe it but in the abstract it has a certain logic. If the entire world is considered a legislative body surely its decisions should be universal and not subject to veto by one state with 5% of the worlds population no matter how proud or powerfull. The problem, of course, is that the world is not a legislative body and that cloaking the opinions of European intelectuals in the mantle of univerally applicable international law is mostly a smokescreen. If the world were a true unitary democracy after all, the real power would be in the hands of Chinese peasants. :-)
6.27.2006 7:00am
Concerned Reader says, "I find modern day apartheid-like conditions (not to mention the construction of the wall) within Israel much more objectionable than the fact of its existence." So the conditions that led to the construction of the wall, i.e. "Palestinians" (Arabs) blowing themselves and Israelies up, etc is acceptable? I don't want to turn this tread into an arm wrestling match over the middle east, but I have a hard time believing that Israel has no right to protect itself in such a manner.
6.27.2006 7:32am
Let me add, the same would be true if Jews were sneeking into Jordan, etc and blowing themselves and others up. Jordan would be perfectly within its rights to build a wall to put a stop to this.
6.27.2006 7:34am
jvarisco (www):
If we told all the residents of New Orleans they had to move a couple miles away to a new city on higher ground, how happy do you think they would be? You can try to justify the expulsion on other grounds, but to pretend it was not harmful to the Palestinians is not true; the fact is that homes have sentimental value. By the same logic, we should allow eminent domain even more - people get a fair value, and get to move a couple miles away to a similar place.

I think one of the main arguments regarding Israel and international law is that there is a double standard. When Israel ignores the UN and builds nukes, we support them; when Saddam ignored the UN (but didn't build nukes) we invaded. It's worse to use international law selectively than not at all; that just makes us look like hypocrits.
6.27.2006 8:05am
It seems fairly simple to me, our govt must follow the constitution. The citizens are the source of sovereignty in which they elect people to represent them. The only acknowledge power which higher authority then the people is God. Last time I checked the international law wasn't God.
6.27.2006 8:29am
o' connuh j.:
International law is not just treaty-based glorified law of contract. Other classical sources of international law are: 1. international custom, 2. general principles of law, and 3. the subsidiary legal writings by the leading scholars within the international legal order (see Art 38 of the PCIJ Statute).
6.27.2006 8:30am
Kristian Holvoet (mail) (www):

If we told all the residents of New Orleans they had to move a couple miles away to a new city on higher ground, how happy do you think they would be?

And yet, would you not, as a disinterested outsider, believe that the poeple of New Orleans are acting irrationally if they return? That they are, in fact, better off if they do create a new 'state' in a slightly different place? That the cost of their demanding to build there is a cost, not only to themselves, but to the all citizens the State of Lousiana, nay even all of the Citizens of the the United States? What right to they have to incur the costs on 300 million other people because they are attached to there houses?

And if we did force them to move, would that be a violation of international law?

How about if we expelled all the illegal immigrants? Would they then have a 'right of return'? They are not citizens, and are here only because we have not acted to move them out. But, is it not our countries right to define citizenship and allowed residence?
6.27.2006 8:35am
I haven't seen the realistic viewpoint expressed here. International law (if we grant that there is any such thing) is a compact between civilized liberal states that each will respect the sovereignty of the others.

When dealing with uncivilized states and factions, as we are today, anything goes.
6.27.2006 8:40am
Humble Law Student (mail):
Before my mind became warped by law school, my understanding from the social sciences is that law necessarily requires enforcement. As long as adherence to "international law" remains more or less individually up to each nation and with enforcement based upon volunatary cooperation of other nations, it isn't law.

Now if the UN had its own military and could go around forcing compliance with international treaties, you would have a body of law.
6.27.2006 8:46am
Richard Aubrey (mail):
The true test of the belief in law of any kind is when it is invoked to the disadvantage of the invoker.

This is rare enough domestically. Anybody have any examples internationally? That doesn't mean a well-insulated individual of a country insisting on the disadvantaging of other citizens of his country. I mean the personal disadvantage of the invoker.
6.27.2006 8:51am
Humble Law Student puts it well. There is no international law if you can't dial I-911 and get the International Police station.
6.27.2006 9:13am
Tibor (mail):
Int'l law is not a cult, it is a normative frame putting the conduct of international relations in a rule-based as opposed to a power-based picture. This is to the benefit of all nations, because it introduces predictability, stablizes the international system, and helps to solve prisoners' dilema situations. Just have a look into why the WTO is such a big leap forward.

Some people you were having discussions with might indeed misuse the term to justify whatever their political position was, however, that sad fact does no suffice to do away with the notion of international law as such or to simply call it a "cult." I hence find your post pretty disappointing. The other comment re "straw men" has it right.
6.27.2006 9:18am
o'connuh j:

International law is not just treaty-based glorified law of contract. Other classical sources of international law are: 1. international custom, 2. general principles of law, and 3. the subsidiary legal writings by the leading scholars within the international legal order (see Art 38 of the PCIJ Statute).

Allow me to clarify one thing, lest the more anti-IL among us freak out that law professors are a source of international law. My understanding is that treaties and custom are considered the two primary (you might say "real") sources of international law, while general principles and teachings of publicists can be considered evidence of pre-existing international legal obligations. The Restatement, for example, distinguishes between sources and evidence (though it puts general principles in the first category -- I don't think that matters much because they don't seem to come into play very often):

§ 102 Sources of International Law

(1) A rule of international law is one that has been accepted as such by the international community of states

(a) in the form of customary law;

(b) by international agreement; or

(c) by derivation from general principles common to the major legal systems of the world.

. . .

§ 103 Evidence of International Law

(1) Whether a rule has become international law is determined by evidence appropriate to the particular source from which that rule is alleged to derive (§ 102).

(2) In determining whether a rule has become international law, substantial weight is accorded to

(a) judgments and opinions of international judicial and arbitral tribunals;

(b) judgments and opinions of national judicial tribunals;

(c) the writings of scholars;

(d) pronouncements by states that undertake to state a rule of international law, when such pronouncements are not seriously challenged by other states.
6.27.2006 9:19am
"Or is "international law" largely invoked to try to restrain the actions of the U.S. and Israel, but largely ignored more broadly?--e.g., I haven't heard of any other nation's besides Israel's legitimacy being questioned because of past or even present real or imagined violations of international law."

Uhm, okay.

How about UN Missions in the Former Republic if Yugoslavia? Ruanda? Embargo against South Africa during the Apartheid regime? Criminal proceedings against people like Pinochet, Tadic, Milosevic for violations of international law? Nuremberg trials? Chinese presence in Tibet? Many many more?

With all due respect, not everything is about Israel and the U.S.
6.27.2006 9:32am
(note I'm not the same dk a few posts above -- i'm suprised the software allows duplicate user names)

I think the problem is in the origins of international law. The first international laws came from essentially three sources: the doctrine of "natural" or universal moral law; the customs of a few countries considered "civilized"; and the pronouncements the Pope made in order to settle disputes among medieval Christian sovereigns. In other words, international law WAS a quasireligious moral code for hundreds of years more than it has been an organized system of written treaties. It shouldn't surprise us that some people still get things confused, or that others see treaties primarily a way to codify their morality.

In particular, it is still very easy for people to believe that whatever the leading nations of Europe are doing is "civilized" and hence superior to whatever other nations are doing. And yes, every time someone comes up with a way to divide the world between "civilized" and "uncivilized" nations, it becomes an excuse to deprive the "uncivilized" of freedom. This applies equally to American invasions and to European attempts to prevent Israel from defending itself.
6.27.2006 9:42am
David in DC:
I think one of the main arguments regarding Israel and international law is that there is a double standard. When Israel ignores the UN and builds nukes, we support them; when Saddam ignored the UN (but didn't build nukes) we invaded. It's worse to use international law selectively than not at all; that just makes us look like hypocrits.

This is a great case in point for what Logicnazi was saying.

Israel is not a signatory of the Nuclear Non-Proliferation Treaty. Iraq was, and as such has certain legal obligations and responsibilities to which they agreed. Israel does not. As Logicnazi pointed out (paraphrasing), these 'international law' arguments are used as proxies for moral or political arguments.

There are non-binding resolutions (not Security Council resolutions) calling for a nuclear free zone in the mideast. This is not "international law", though.

The resolutions passed regarding Iraq and weapons inspections were Chapter VII Security Council resolutions, which have the force of law *and* can authorize the use of coercive measures if they are not followed.

(If you understand the mideast, you recognize the irony that the majority of countries are very likely more afraid of Iran having nuclear weapons than Israel, for a variety of reasons, some of which would coincide with the reasons for our own tolerance.)

In any event, IMO Israel is a poor choice around which to frame a general discussion about international law. The UN is incredibly biased against Israel, and the political machinations by the bloc of Islamic nations and their allies muddy the legal discussion a bit.
6.27.2006 9:49am
Humble Law Student (mail):

Thank you very much for pointing out the difference between Chapter VII resolutions and those by the general assembly. Its a fundamental distinction that is too often lost.
6.27.2006 9:55am
Paul S (mail):
To answer (as best I can) the specific questions posed:

1. Enthusiasm for international law goes in waves. A fairly high degree of support for it is to be found in Article VI of the US Constitution and the Alien Tort Claim Act (1789), which recognise (some treaties) and some principles of "the law of nations" as part of US law. Other key moments of enthusiasm are probably the period immediately after World War I (the founding of the League of Nations), and again after World War II (the Nuremberg Trials, the founding of the United Nations, the European Communities and the European Convention on Human Rights).

2. The main motivating factors in those cases seems to have been an understanding that resort to naked power in international relations, even when it "works", happens at enormous human cost, and that it would be better if the self-interested deployment of power were to be tempered or replaced by more peaceful means to resolve disputes in accordance with widely accepted or agreed normative principles. A lot of effort is directed at making states play by the rules, which includes establishing institutions to decide authoritatively what those rules are (one of the major weaknesses of international law) and/or to enforce them (a second huge weakness). Enthusiasts naturally dislike states who wish to dine a-la-carte, invoking principles that suit them and disregarding those that do not, because it weakens (or reveals the weaknesses) of international law.

3. From the point of view of international law, it "trumps" national law because otherwise it would not be law. If international law only applied if any given state chose to apply it, it would have no normative force at all. Whether international law "trumps" domestic law from the point of view of domestic law itself is something that international law (normally) has nothing to say, and different states vary in their practices.

4. There is a quite separate, and probably entirely sterile, debate among philosophers of law as to whether international law is part of the same "system" of law as domestic law, or forms a different "system". This recherche debate has more to do with what one means by "system" than with anything of practical significance.
6.27.2006 9:55am
I believe that many people tend to equate "international law" with the Nuremberg trials and the body of treaties and institutions developed in the aftermath of the incredible suffering of civilians in WWII.

What you call the "cult" of international law represents a belief in universal, nongovernmental humanitarian principles that stand against governmental oppression of civilians -- either a nation's own citizens (e.g., the German Jews and Gypsies); or your enemies' civilians (e.g., the residents of Hiroshima and Dresden). As such, "international law" really embodies a sort of cultural ideal rather than any specific legal principles. It's aspirational, not legal, and it is naive to say the least that international law always does or should trump domestic law. All human rights activists understand this, even while invoking "international law" to try to get nations to change their behaviors.
6.27.2006 9:55am
jallgor (mail):
I stated in an earlier post on this blog my beleif that international law doesn't really exist because it can't be enforced. This is also stated above by several commentators. I think this thread also shows the second problem with the term "international law" which is that nobody really knows what it is. There are no codes or statutes. According to one post above, treaties and custom are the main sources of international law. Really? How can a treaty be international law when only a few countries sign it? How many countries need to sign it before it becomes international law? How can "custom" ever be a source of law?
When most people talk about Israel violating international law they are usually referring to violations of UN resolutions. Are UN resolutions international law? Not according to the Restatement quoted above. So what are you left with? An uneforceable, undefined, so-called body of law that has no real rules and no real buy in from the countries that it purports to govern.
6.27.2006 9:58am
Humble Law Student (mail):

The fundamental problem is that your "rule-based"/Kantian structure still requires a "power-based"/Hobbesian power (read US) to allow it to function at all. Without the US (or some other body) protecting the overall system, the "rule-based" system will necessarily fail because someone will always come around who doesn't respect rules, only power.

I recommend Robert Kagan's Of Paradise and Power or if you don't want to buy the book, he was a long essay on it.
6.27.2006 10:01am
Humble Law Student (mail):

Common law in the US and Britain is basically custom or was derived from custom.
6.27.2006 10:03am
Ken Arromdee:
There is no way, for example, to argue that one ought not follow a treaty as it is not law.

Sure there is. Argue that the treaty is unconstitutional.
6.27.2006 10:16am
Christopher Hasbrouck (mail):
I guess I'm somewhat aligned with humble law student? Who cares about Kant? Hobbes is all that matters in international politics. No common power, no law.

International law doesn't exist. It's real like a Veggieburger.
6.27.2006 10:17am
For those who are hung up on the idea that international law isn't "law" because it can't be enforced, two responses. First of all, international law can certainly be enforced. The International Criminal Tribunals for Rwanda and Yugoslavia, for example, are busily trying war criminals for violations of international criminal law. Domestic courts can and do apply international law. See the (in)famous Paquete Habana case ("International law is part of our law") and the Pinochet case. And newer international institutions, like the WTO, are being given more effective enforcement mechanisms.

Second, even if IL isn't adjudicable and enforceable by some central institution, does that really mean it's not "law"? Are all the constitutional provisions that fall under the political question doctrine not "law" because the political branches have to figure them out without assistance from the Supreme Court? Last I checked, Congress couldn't call 911 to get the President to honor its authority to declare war. I'm not sure you can sharply distinguish between law, on the one hand, and politics and morality, on the other. To varying degrees, every legal question has a bit of both.

With regard to David Bernstein's original question, I think the problem is with people's failure to acknowledge precisely this. Every legal question has a political/moral aspect. It's never satisfying to justify enforcement of a legal rule by saying, "Of course it should be enforced, it's the law!" You need some account of why it's good to enforce the law in that case or why it's good to enforce the law without exception.

This is even more true for international law, which lacks centralized institutions for its promulgation, interpretation, and enforcement. If you can't point to any reason why State X should have Obligation Y other than "It's the law!" then good luck convincing X to respect that obligation (or other states to enforce it).

I happen to think that most international law is desirable. As other posters pointed out, cooperation is good for everybody, even the most powerful actors. But that's a tough issue and there are intelligent arguments on both sides.

In any case, insofar as David's post is a criticism of people who invoke international law, I think it's misplaced. Insofar as it's a criticism of people who invoke The Law (of any sort) to avoid engaging with tough questions, then it's spot on.
6.27.2006 10:29am
Mooki (mail):
Since when does a violation of international law (assuming that there is one, arguendo) make a state "illegitimate"? By that token there probably isn't a legitimate state around.
6.27.2006 11:00am
@Christopher Hasbrouck: Okay chief.

You happen to like Hobbes and to believe that power is everything (veeeery modern thinking, last time I checked, Hans Morgenthau was so passe, but anyway.), I happen to like Kant and veggie burgers.

If china becomes the power political scientists believe it will become, settling for Kantian veggie burgers instead of believing one was still the 900 pound gorilla might be the healthier diet.

@mookie: excellent point.
6.27.2006 11:24am
Humble Law Student (mail):

You really think China will respond to rules rather than power? Your argument exposes a fundamental flaw. You fatally assume that in a world where there isn't a dominant power, that China will voluntarly adhere to the "rules". I posit China is much less likely to adhere to them than the US is (particularly if you reversed the US and China's positions).
6.27.2006 11:30am
anonyomousss (mail):
why is this any more "fanatical, quasi-religious" than any other strongly held normative belief? consider this fairly common exchange:

d: the nsa's domestic survellience program violates the law.

r: but the program is necessary to preserve american national security.

d: but it violates the law. if its really necessary, the president should have asked congress to convene a secret session and pass a law authorizing it.

[etc. etc. etc.]

would we describe d has having a "fanatical, quasi-religious" belief in obeying the law? you could record the same exchange with pretty much any other strongly held moral principle.
6.27.2006 12:05pm
Randy R. (mail):
China voluntarily agreed to join the World Trade Organization and abide by its rules because of the economic benefits that will follow. Any member of the WTO that violates its rules suffers penalties, and the penalties have teeth. Most cases brought before the tribunal involve dumping goods in the US market, and usually the US wins those, so it is to our benefit to support these international trade laws. Countries that violate these laws are fined, and ultimately at risk for having the lucrative US market closed to them.

So police power is one way to enforce international law, and witholding economic benefits in another, perhaps more effective, way for enforcement. One could argue that 'power' can be guns, and it can be money. Sometimes the two go together!
6.27.2006 12:07pm
Cornellian (mail):
I think the reason people like to use International Law against Israel is that Israel is pretty obviously "in the wrong" in the sense that they sortof stole a bunch of Arab lands

I'd say those Arabs stole the land from the Romans.
6.27.2006 12:44pm
Cornellian (mail):
Before my mind became warped by law school, my understanding from the social sciences is that law necessarily requires enforcement. As long as adherence to "international law" remains more or less individually up to each nation and with enforcement based upon volunatary cooperation of other nations, it isn't law.

This is many people's instinctive reaction and it seems intuitively plausible but it's not so simple. The counter argument is that the US federal government (for example) has to be relied upon to comply with its own laws, voluntarily. It can't be forced to adhere to its own laws since it controls both the military and the budget but that doesn't mean that US law isn't "law."
6.27.2006 12:47pm
Guy T.:
This essay from a few years ago offers some theories about modern reverence for international law.

6.27.2006 12:55pm
Brooks Lyman (mail):
My understanding/feeling is that international law as a cult is a creation mainly of the left: 1) Liberals who, having been brainwashed by nearly a century of the League of Nations and the United Nations, favor "world government" and "international law" as somehow being better, fairer and more "just" than the separate laws of the individual nations. 2) Hard leftists (and the Jihadists) who use the UN and "international law" as a club to beat their enemies with; those enemies being mainly the liberal (small "L") democracies. For Americans, hating one's own country (or just President Bush, religious believers and conservatives) can be part of the mindset.

This is not to deny the existence of real international law based on various treaties that has accumulated over the years. But those who devise "international law" with an agenda (for example, the UN wants to abolish the 2nd Amendment rights of Americans) are - at least insofar as I am concerned - outside the pale. The danger of such "international law" to American citizens, is that the United States has a better record than most nations when it comes to honoring treaties. So we (and the Senate) need to be very careful just what treaties we ratify, particularly if they will have an effect - most likely negative or restrictive - on our liberties.
6.27.2006 1:01pm
Isn't relying on "custom" as a source of international law a little squishy? Custom holds, for example, that marriage is between a man a woman, yet I suspect that many of those arguing for custom as a source of IL would disagree with the statement that gay marriage is illegal because it is not customary. Custom can be an inspiration for law, but it is not solid enough, not set enough, to be the law itself.

It strikes me as just too convenient, too easy to cite custom when you want to and disregard when you don't. And isn't law, by its very nature, meant to overcome such tactics and apply universally.
6.27.2006 1:02pm
Greg Blankenship (mail) (www):
I think the problem is cultural. Americans are obsessed with the notion (which is good) that you play by the rules and that we are a nation of laws. You combine that with a drive to find that single answer (monocausation) which comes from our adherence to the scientific method and it becomes very natural to devise a simple solution to a complex problem -- to simply follow the law. I would add that our two dimensional limitations on the press -- time and available space -- reinforce this attitude.

I believe also that there is confusion, like many have pointed out here, in the difference between domestic law (Constitutions, statutes, common law) and International Law, which traditionally has been based on international norms. Treaties occupy both spaces in our case because the US Constitution makes treaties domestic law. In doing so, we add another dimension of complexity.
6.27.2006 1:02pm
Jim C. (mail):
The problem isn't that international law can't be enforced; it's that for the most part nobody can say with any confidence what it is. Treaties are a source of international law, sure, but they rarely cover the difficult questions. If no treaty applies, you've got, as o'connuh j points out, custom, general principles of law, and scholarship. These sources are adequate to demonstrate that, say, wholesale slaughter of non-combatants is against international law. But no one likely to pay any attention to legal arguments does that anyway, or argues that it can legally be done. On difficult questions, international law is useless, because a difficult question is by definition one that's disputed, and where there's a dispute international law offers not only no meanns of enforcing a judgment, but no way of determining what the judgment should be.
6.27.2006 1:04pm
Cousin Dave (mail):
anonyomousss: You are assuming that the statement made by "d" is true. This is far from certain; in fact, judging from what I've read, that statement is probably false. In which case, your argument plays right into Bernstein's original point: "The NSA program violates my personal opinion of what the law should be, therefore it's illegal!"
6.27.2006 1:06pm
te (mail):
Good God, more about Israel?

Who cares?
6.27.2006 1:14pm
James Stephenson (mail) (www):
Cornelian Said:

I'd say those Arabs stole the land from the Romans.

Well I say those Romans stole the land from the Jews, which is never brought up when people talk about how Israel is land stolen. Really, and who was there first?

Even "Passion of the Christ", there were Jews and there were Romans, where are the Palestinians. Oh yes, they had not been kicked out their homes by the Arabs yet. They were moved into modern day Israel when the Arab countries kicked them out of their original homes.

If anything, these international law people should be screaming to the Arabs to take back their own people. Give them back the homes of their ancestors. Of course, they may be killed for advocating such a policy.
6.27.2006 1:20pm
Cato (mail):
International law seems to me historically to have been whatever set of rules the major powers agree to play by in a particular historical context because they believe that the failure to adhere to those particular set of rules would have worse consequences than adhering to them. It has always been, so to speak a 'gentleman's agreement' enforced by the possibility that everyone else (who matters) will gang up on the violator.

International law has ever changed when one or more powers of sufficient significance has come to the conclusion that its vital interests would be more threatened by playing by the current 'rules' than by declaring new rules, or at least that it would no longer adhere to the old rules.

As long as there are groups - be they tribes, peoples, nation-states or alliances - which believe that sovereignty inheres in the group (and hence that only the group may determine its destiny), there will be no ultimate authority on earth except the willingness and the ability to resort to force: ultima ratio regis.

The UN and the post-WWII framework of "international law" is no more than the set of rules set up by the victorious powers in WWII and agreed by them. To the extent that international law is binding, it must be enforced by those powers. To the extent those powers do not believe that framework is sufficiently valuable that they are willing to enforce it by military means (when necessary), it will wither deservedly away.

The case of Israel is straightforward. The they see is between national survival and the alleged 'demands of international law' -- the question isn't even close. No people with the means to resist will commit suicide, or even take a significant chance of doing so.

To the extent any framework of international law demands choices of that sort from representative governments, the framework is flawed and not worth preserving.
6.27.2006 1:21pm
Kevin in Dallas:
I wonder exactly what provision of international law has been violated. It is like saying that a war is illegal? According to what? Since there is no codebook on international law, as there is for a nation's statute law, they must be working under a theory of international law. So what theory is that? The best one I can think of comes out of the natural law tradition. So is the reliance on the law of nations based on Locke, Grotius, Pufendorf, Burlemaqui, Vattel, etc.? Unlikely.
6.27.2006 1:22pm
88888888 (mail):
Is international law: common law, civil law, or Sharia?

The best answer to anyone who cites international law: "So go enforce it."

The second best answer is to find other violations of international law and ask if we should enforce that. For instance, how many nations are violating human rights as outlined in UN Charters? Probably at least 30% are in serious violation. Maybe 100% if we get technical.
6.27.2006 1:24pm
I think the reason people like to use International Law against Israel is that Israel is pretty obviously "in the wrong" in the sense that they sortof stole a bunch of Arab lands and situated a nuclear arsenal on them.

What square foot of this earth has not been "stolen" from someone at some point? Right now I sit in the "illegally occupied" lands that were stolen from Mexico in 1848 (and in which we also situated a nuclear arsenal).

International Law feels like the only legitimate vehicle for bringing recognition to that wrong.

"Israel violated international law" sounds better than "the Jews are our misfortune", which is what they really mean.
6.27.2006 1:27pm
anonyomousss (mail):
cousin dave, you seem to have missed my point. bernstein was arguing that because the international law folks he's coresponding with respond to his consequentialist objections by repeating their apparently deontic claim that it violates international law, international law has become a "fanatical, quasi-religious" "cult." my point (that we normally wouldnt say that d is a "fanatic" or member of a "cult") doesnt depend on d being correct about the law. she just needs to be sincere in her belief.
6.27.2006 1:28pm
The true test of the belief in law of any kind is when it is invoked to the disadvantage of the invoker.

This is rare enough domestically. Anybody have any examples internationally? That doesn't mean a well-insulated individual of a country insisting on the disadvantaging of other citizens of his country. I mean the personal disadvantage of the invoker.

Except when it is the law of equity. Seriously, law is about settling disputes; it works because people are continually confronted by the law, and it about equally breaks for and against them. Thus, the immediate disadvantage or advantage is not important.

This idea of coercive law does not encompass the entire legal system. Plenty of disputes are adjudicated willingly by both parties involved. I think you are much too much thinking of 'criminal law' wherein you are deprived of life and liberity if not also property. Such a scheme destroys the concept of a repeated game to which I was earlier alluding. It's one round (and the state can't really lose).

It would be helpful to recall that prison was once referred to as a 'peculiar american institution' (and has really only existed for ~100 years, barring debtor's prisons, political prisons, and other extreme cases).
6.27.2006 1:28pm
I say the Jews have the right to return to Temple Mount.
6.27.2006 1:34pm
EvilDave (mail):
There is no Global body that makes laws!
There is no international legislature (the UN ain't it), there is no international monarch. They are the two groups that make laws. When there is a 1:1 correlation between cause &effect, if you don't have the cause (international legislature) you can't have the effect (international law).
So despite the lies that a bandied about, international law doesn't exist.

What people often mean when they say "international law" is "treaties," but they usually have some agenda they are hiding behind and intentionally misleading you. I assume that since God is dead and humans can no longer appeal to the moral authority of God that they feel the need to appeal the moral authority of some other fictitious being. In this case, international law (aka global standards).

Now on to treaties.
Treaties are just agreements between governments to enact laws. They aren't law by themselves. The US Constitution gives the President the authority to make treaties, but Congress gets to ratify and then make laws based upon them.
So, the US &AU make a treaty to do W, X &Y
When it gets run through the AU Parliament they don't like W. So they pass a law that allows for V, X &Y. That law is only enforceable in AU. It is an imperfect implementation of the treaty, but an implementation nonetheless. It is like a standard that is implemented but not fully.
Same thing happens in the US Congress. But they pass law with X, Y &Z.

Now you have 2 national laws. A AU law. A US law. You don't have an international law. Why? No international legislature remember.
You can sue in AU under the AU law, but not the US law. So in AU you are entitled to V, X &Y.
You can sue in US under the US law, but not the AU law. So in US you are entitled to Z, X &Y.
No where can you sue under the treaty. You never are entitled to W. Because te treaty (which entitled you to W) isn't a law, just an agreement to make a law.
You can't sue in NZ under either the AU or US laws. Because NZ, has neither of these laws and their courts don't care about US or AU laws.
Now we mis-use the term "treaty" to refer to both the AU &US laws collectively, but neither of them is really the treaty as negotiated by the PM/President.

Hey what about these international courts?
Well, they are really arbitration bodies.
They have no legal power beyond what the individual nations give them.
The UK may pass a law giving ICC judgments full effect, but that is due to the UK ceding sovereignty to the ICC, not because the ICC is inherently morally superior or because of some international law (which doesn't exist remember).
Now the US doesn't agree to cede its sovereignty to the ICC. So the ICC has no effect in the US.

Why no power beyond what the individual nations give them?
It comes down to a concept called jurisdiction.
See, ultimately might does make right. Not moral correctness, but the right to do something is ultimately based upon your ability to enforce that right.
To enforce a court order to, for example, the ability to forcibly imprison someone, take their personal and real property from them, you need an army and a police system. Nations have these things. NGO bodies don't. Even the UN has no standing military. It relies on borrowing the military of its member nations.
If the ICC has a judgement it wants enforced in the UK, it needs to get the approval of the UK government to use the UK police force to do that. Alone, the ICC is impotent.

Ultimately, every country acts unilaterally. Every country implements their own version of treaties. Every country decides whether or not to cede sovereignty to an international arbitration board.
6.27.2006 1:35pm
Cato (mail):
pallen: I think that any example of international law being accepted to any entity claiming sovereignty's disadvanage would be a situation where the entity's decision maker believes that the acceptance of the immediate disadvantage in fact represents the best alternative to significantly greater disadvantages which would follow from refusing to accept the immediate disadvantage.
6.27.2006 1:38pm
steve k:
Give me the date that the Arabs last owned Israel? They haven't for a long time, going back well before the 1940s. Meanwhile, Jews lived there continuously and, for decades before the 1940s, bought land legally and built it up (even as they were attacked by others). Jews were a majority in much of that area before the UN partition plan.

People can't even get history right, and appeals to so-called international law just help the lies get repeated.

To those who ask why is this all about Israel: it shouldn't be, but as long as the UN wastes about half its time and energy passing double-standard rules against this state, it has to be.
6.27.2006 1:42pm
Tom Holsinger (mail):
This one goes back a very long time. I first ran into it in law school in the fall 1972 semester at Hastings when working for a professor. She asked me to summarize a book on the subject. I suspect it goes back to the Comintern in the 1930's.
6.27.2006 1:51pm
anonyomousss (mail):
steve, i have no beef in this fight, and no real opinions about israel, but that particular argument isnt very good. we dont generally treat property claims that recent as invalid; see, e.g., demands that swiss banks return funds to holocaust victims, which at least some of the banks did a few years ago. also, there are laws on the books here in the u.s. about what happens if cuba finally gets taken over by a democratic government. our law says we won't recognize such a government unless they return the property castro expropriated to the people who owned it before his regime.
6.27.2006 1:54pm
Humble Law Student (mail):
Well, to condense several thousand years of history into a few sentences...

The original inhabitants of Israel/Palestine were various tribes, the Philistines, etc.

From what we know, the Jews of old massacred every last one of them when taking the promised land. As such, despite whatever Arabs came that in afterwards, the Jewish people properly have claim as the oldest owners of the land (since the previous owners met with uhh... misfortune).
6.27.2006 1:58pm
The biggest issue I have with the I-Law brigade is that they generally refuse to treat seriously what few binding texts we possess.

A great example is G-Bay and the Geneva Conventions. The I-Law crowd tends to hew to a line that we should either "charge them" with a crime or let them go...however the TEXT of the GCs specifically prohibits criminal charges (except for crimes that they commit while under detention). Similarly, the Administration's distinction between legal and illegal combatants (and the different GC protections that accrue to both) is absolutely part of the GCs--indeed, the requirements of a recognized command structure and duty of both parties that seperate the classes was deliberately put into the GCs to protect civilians. Blur this distinction and you remove some of those protections...with the tragic results we now see.

Until the I-Law crowd is willing to take the clear restrictions of their texts seriously, ity is very difficult to argue that it exists as anything more than a rhetorical device designed to support their policy preferences.
6.27.2006 2:05pm
steve k:
anonyomousss: I'm sorry, but the Palestinians were offered a country by the UN--something they had never had (they did not own the state you think they have a claim against). They decided they'd rather fight a war against the Jews. If someone decides to kill you, no moral law, international or otherwise, should demand that you help make them whole when they fail.

As the Humble Law Student, perhaps he's never heard the definition of "aborigines"--they're the people who wiped out the previous group so successfully that no one's ever heard of them.
6.27.2006 2:15pm
TDPerkins (mail):
James Stephenson wrote:

"Really, and who was there first?"


I could believe there were half a dozen groupings living in the area, some dying off, some being killed off, and some being driven off--all of that before the Israelites decided to slaughter the Philistines out of their property and claim God said it was okay.

Every tribe has about always claimed God said it was okay...

When someday they're silicon based lifeforms observed slaughtering the hydrogen breathers, someone of them will claim God said its okay.

What, I should be pissed at the Italians for what they did to Boudiccae?

Yours, TDP, ml, msl, &pfpp
6.27.2006 2:22pm
KenricH (mail):
It seems to me that no one here has tried to answer Berstein's question.

The fact that poeple can legitimately question the mere existance of "international law" while others take its existance as a given, adds weight to Berstein's point that you can "just substitute "God says so" for "international law says so.""

The reason some people seem have "a fanatical, quasi-religious belief in "international law"" is because the individuals expousing "international law" have, by and large, rejected the trappings of traditional religion and adopted a new "universal truth" to belive in. This universal truth is "international law," which if only everyone followed it we could all live in a peaceful paradise like Adam and Eve before they disobeyed the law and ate from the forbidden tree.

The irony here is that all the Left has done is reject the trappings of Christianity while internalizing what they believe are its fundamental truths. To a Christian the natural state of the world is peace, and this is one reason why they spend so much time trying to "explain" the outbreak of war instead of explaining the outbreak of peace.

Everyone has to have something to believe in and the Left has rejected traditional religion, so now they have to find a new religion to believe in.

International law, environmentalism, and communism fill the void and give people something to believe in that is greater than themselves.

The international law acolytes believe in "universal principles," also known as jus cogens, that, if they are followed, will lead to paradise on earth. Nevermind the fact that "international law" was used by Germany to prevent U.S. intervention in Yugoslavia after Germany sparked the civil war by appealing to international law.

Environmentalist priests worship mother nature, some of them going so far as to think that the earth has "bones" and "feelings." Nevermind the fact that millions of Africans have died, because "environmentalists" care more about birds and the use of DDT.

Communists believe in the eventual triumph of the proletariot, which will bring about a new paradise on earth. Nevermind the fact that Stalin and Mao each murdered more people than Hitler.

It is always amazing what kinds of actions people can justify when they have a fanatical believe in the rightness of their cause.
6.27.2006 2:23pm
JamesH (mail):
It might be worth distinguishing treaties that bind only the signatories from treaties that claim universal jurisdiction. The ICC treaty claims to be binding on non-signatory countries such as the US, leading to US efforts to establish bilateral agreements that US servicemen won't be handed over to the ICC. It's also the basis for threats of Belgian prosecution of Rumsfeld when he attends NATO meetings.
6.27.2006 2:25pm
Silly boy. Don't you know that only the US and Israel have to conform to "international law"? All other countries can do whatever they want, especially if they are run by vicious thugs.
6.27.2006 2:37pm
David W (mail):
I think the "International Law as God" route is on the right track (especially KenricH, above). People who have a sense of "wrongness" but do not believe in God use Law to justify why actions are absolutely wrong. In the presence of a power vacuum, Law has become the "higher power" of atheism. And, why not? The early Bible is in large part a book of Law for the Hebrews, as much as an exploration of nature and God (was Moses a lefty?).

I think this also applies, to some extent, to people who are not athiest but are preferring to rely on "reason" for the sake of arguments (a noble goal, I guess).
6.27.2006 2:45pm
Christopher Cooke (mail):
I have researched and studied international law, so let me add my two cents. Modern international law's origins derive from natural law theories prevalent in Europe in the age of enlightenment. The theory is that there is a natural body of law that applies to govern each nation's conduct toward each other nation, much the same way there is supposedly such a body governing each citizen's conduct towards its sovereign. That is why old international law scholars (Grotius) speak of "discovering evidence" of international law. The theory is that the law exists, and the scholars to discover it, much the same way that a scientist might discover some law of physics, chemistry, or mathematics. The English viewed common law the same way. And, Clarence Thomas, on the US Supreme Court, follows a version of this "natural law" theory today, regarding constitutional rights (or, at least, he said he did during his confirmation hearings when he was not being asked about the Anita Hill stuff).

Under the "traditional" international law model, these laws only regulate the conduct of nations towards one another and do not create any rights in citizens of the nations, who were considered "objects" of international law rather than its subjects. The original "sources" of international law were treaties and custom (how nations historically acted towards one another), and the laws mainly concerned commerce, diplomatic relations, and the conduct of warfare.

In the 20th century, international law changed more dramatically, and was viewed as creating rights in people, and not just in nations (this is a bit of a simplification, but the gist is true). Still, some of these new "laws" might be called mainly aspirational rights (such as the UN's Universal Declaration of the Rights of Man), which means that nations are not legally obliged to follow them, but they may be evidence of where the law is going (kind of like "evolving standards of decency"). Other laws do carry the force of law, in that they can be, and have been, enforced through legal actions in many countries; an example of customary international law, derived from treaties, creating rights in persons is the right not to be tortured. This right is based on treaties, but creates a right in an individual who is a citizen of a country that signed these treaties not to be tortured. There have been several successful US civil cases brought by victims of torture against their torturers, based on violaton of this right (e.g., the Filartiga case).

Another international legal right pertains to piracy and the right to bring legal action against pirates for seizing one's property (this is an older right, going back to before the founding of the USA). The Aliens Torts Claims Act, passed in approx 1789 (I thought it was passed in 1791), expressly grants standing in US courts for a non-US citizen to sue another for violations of the "Laws of Nations" and was passed to grant standing in US federal courts to ship owners whose ships were seized by pirates operating off of the North African coast. It has since been invoked by the torturers.

It is hard to know which "international law" arguments that email correspondents of Professor Bernstein are supposedly invoking in a "cult" like fashion, as we have only his summary of their comments. I will say that nations follow international law, even to their detriment, every day when they abide by WTO decisions going against them, submit matters to the International Court's jurisdiction and accept that court's adverse decision, recognize diplomatic immunity of another nation's embassy personnel who have committed a domestic crime, etc.

But, for matters viewed as really important, nations often (surprise) don't follow international legal obligations ---whether these laws are treaties, UN Security Council resolutions, or customary international law---and do whatever they think is necessary. If the conflict is with a treaty, the nation simply withdraws from it. However, there is no ability to "withdraw" from the supposed legal force of a UN Security Council resolution, or from "customary" international law. Israel's defiance of UN Security Council resolutions pertaining to returning land it captured during the 1967 war is an example of a matter where Israel deems its ability to set its own borders, and to keep captured land and settle it, more important than abiding by "international law" as defined by the UN Security Council. (By the way, the legal problem with the security wall is that it doesn't recognize the pre-1967 borders, and is built on land that Israel is supposed to give back).

Of course, some might argue that Bush is ignoring US and international law in the War on Terror (e.g., NSA surveillance, Guantanamo) in certain areas because his administration views the costs of compliance as too high.
6.27.2006 2:49pm
Inkling (www):
Excellent timing. I've been editing for publication a new G. K. Chesterton book, Chesterton at War, that gives his views on World War I and pacifism. It's marvelous reading the guy. Just this morning I was working on an Illustrated London News article from the closing days of the war (Sept. 18, 1918), where he fires a humorous broadside at the internationalist sort of pacifist.

There is nothing to be said about such people, except that the mere word international seems to mesmerise and stun them; and if somebody were to propose an international pair of trousers to be circulated in rotation among the Presidents of all the Republics, they would not have the moral courage to laugh.

In short, laws are like pants, they shouldn't be passed around indiscriminately. It's astonishing how much of what Chesterton said about WWI pacifism remains relevant today. As early as 1914, he mentioned the pacifist tendency to get caught up in catchwords.

Just as that modern military progress was choked with dead men, so our modern mental progress is choked with dead words. I do not mean phrases I think false, as one thinks of a false religion or political remedy: I mean dead--in the sense that they have no life in them, even in the minds of those who use them. They are the trophies of talking nonsense for thirty or forty years; they are stereotypes set up in times of security and thoughtlessness; they flow easily from the pen, and they have no reference to anything good, bad, or indifferent. The Pacifists in particular find their path impeded by odd catchwords, which they have become quite used to repeating, but which obviously do not allude, however distantly, to anything in the world.... I open a highly superior Peace paper, and I find first the phrase that it is always easy to arouse the blood-lust.... What is the blood-lust? Have you and I any blood-lust? Do we know anybody who has any? Most of us by this time have kindred and close friends who we have known all our lives and whom we saw a little while ago, perhaps for the last time. Had they any blood-lust? Did they look as if they had?... The simple truth is that, somewhere in the mid-Victorian time, philosophers talked about war and tried to explain it away, hoping soon to sweep it away. It was the fashion just then to find all human history in the Zoological Gardens. They had heard something about the tiger tasting blood, so they said that such things as the Crusades and the French Revolution happened because we had not quite sufficiently “let the ape and tiger die.” We still had a stripe of the tiger about us somewhere: and that made us die for our country like Kosciusko, or be burned for our faith like Joan of Arc.... So they started this fashion which is now no more than a phrase.

If you've yet to discover the delights of Chesterton, you don't know what you've been missing.

--Mike Perry, Inkling Books, Seattle
6.27.2006 2:51pm
rgcnyc (mail):
Moving from Brooklyn to Queens (depending on the neighborhood) can be like relocating to a different continent.
6.27.2006 2:55pm
jallgor (mail):
A commentor wrote: "the United States has a better record than most nations when it comes to honoring treaties." I don't know if that's true or not but it would be really interesting if someone did a study and ranked countries based on their adherence to treaties.
6.27.2006 2:58pm
Humble Law Student (mail):
Steve k,

Um okay? So, the the Philistines acted like "aborigines" and wiped out the people before them. I hardly see how that is relevant.

The Jews were resilient enough to survive extinction (unlike the Philistines). As such, the Jewish people have the longest claim to the land in Israel/Palestine.
6.27.2006 3:07pm
KenricH (mail):
The following quote is a perfect example of giving only part of the facts while also claiming to be an unbiased or at least disinterested party to the discussion.

Israel's defiance of UN Security Council resolutions pertaining to returning land it captured during the 1967 war is an example of a matter where Israel deems its ability to set its own borders, and to keep captured land and settle it, more important than abiding by "international law" as defined by the UN Security Council.

The UNSC resolution being referred to here is UNSCR 242. Mr. Cooke, if you wish to talk about this Resolution then do us a favor and discuss the entire resolution and not just the half that you want to talk about, because it can be used to bash Israel. As someone who tried to bolster his position by telling us that he has "studied and researched international law" I would hope that you could at least present both halves of this resolution.

You remind me of someone who tells a roomful of undergrads, right before the the invasion of Iraq, that UNSCR 1441 "does not require the use of force" while failing to tell your audience that neither did UNSCR 1441 prohibit the use of force. In other words, if you are going to be an advocate, then please let us know, so we can weigh your statements accordingly.
6.27.2006 3:13pm
International law --- the new Brooding Omnipresence in the Sky.
6.27.2006 3:19pm
Cover Me, Porkins (mail):
when and how "international law" gained such cult-like status

Begging the question to defend "international law" probably became a widespread practice when media and communication advances exposed the concept to a serious and sustained intellectual challenge.
6.27.2006 3:20pm
Christopher Cooke (mail):
I do partly agree with Professor Bernstein in that some leftists apply a double standard in judging Israel's actions under international law. They tend to see Israel's actions under international law as illegal, but then make excuses for the actions of African and Arab countries that equally or more egregiously violate international law and human rights ("they had to do it, they were forced by the circumstances, or the legacy of colonialism," whatever the excuse). I have not read many leftists condemn Robert Mugabe's actions in Zimbabwe, for example.
6.27.2006 3:24pm
anonyomousss (mail):
jailgor, my guess is that claim is based on some serious double standards. when the u.s. arguably violates a treaty, it's not a real violation or they violated it first; when others arguably violate treaties, those sorts of excuses won't be found nearly as often.

humble law student, who cares who has the oldest claim when we're talking about arguments going back thousands of years? if we took that standard seriously we'd have to reallocate every scrap of land on earth except possibly israel.
6.27.2006 3:42pm
Greg Graham (mail):
Chris Cooke,

If International Law as a framework has grown out of custom and historical international diplomatic relations, and if diplomatic relations are conducted by the executive branch, then doesn't the willy-nilly recognition of international law within our borders amount to granting the president unconstitutional legislative powers? I'm not a law scholar, but I always thought that's why treaties have to be ratified by the senate, as the GATT treaty was in 1994:

I will say that nations follow international law, even to their detriment, every day when they abide by WTO decisions going against them, submit matters to the International Court's jurisdiction and accept that court's adverse decision,

If one makes a distinction based on ratification, then "ratified international law" can be viewed as OK since a recognized legislative body voted on it. "Unratified international law" is the imposition of the policies of the president and any dictator/oligarch buddies abroad dream up, perhaps after a period of time for those policies to become "customary" and "historical". I'll go out on a limb and say that it is the "unratified" kind of international law that alarms most commentators.

some might argue that Bush is ignoring US and international law in the War on Terror (e.g., NSA surveillance, Guantanamo) in certain areas

On the contrary, according to the "customary" and "historical" tests you have alluded to, and if you consider the practices of Middle Eastern kindoms and Communist dictatorships from the last century, Bush is probably well within the norms of international law there.
6.27.2006 3:49pm
Christopher Cooke (mail):
Sorry KenrichH:

here is the relevant language of Resolution 242 (which I was too lazy to look up when writing my last post):

The Security Council:

"Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:

Withdrawal of Israeli armed forces from territories occupied in the recent conflict;

Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;"

Of course, you are right (if this is your point), that Arab countries are not paying attention to the second point--termination of all claims or states of belligerency."
(it has been many years since I looke at this)

My understanding is that the US position has been that Israel's annexation of most of the land it conquered during the 1967 war (via settlements and the fence) is not consistent with the first point, but I understand that the key language is "territories occupied" which could mean either "all of the territories" or "some of the territories." The US view is that this language means that some minor border adjustments are consistent with the resolution, but Israel can't keep everything.

I was not intending to be an Arab propagandist, but I think my point about Israel's unwillingness to cede to the UN Security Council the ability to decide its own borders and security is still valid, and that Israel will decide what it wants to do about these borders regardless of this resolution.
6.27.2006 3:50pm
Gekkobear (mail):
I'm confused. Could someone get a link so I can purchase the full text of the "International Law" books? I'd like to research what has (and has not) been codified into "International Law" by the "International Lawmakers" during their legislative sessions.

Heck I'd like to know who these lawmakers are and how they got a job like that...
6.27.2006 3:50pm
TDPerkins (mail):
"In short, laws are like pants,"

Could we all take a moment and reflect that there are enough places where you can read a sentence like that.

Yours, TDP, ml, msl, &pfpp
6.27.2006 3:52pm
Harry Eagar (mail):
Except for Paul S., nobody seems to be trying to respond to Professor Bernstein's query about when international law-olatry got its start.

I'm no lawyer, but I know when I first encountered the attitude in someone who was: 1995, Roger Dingman's 'Ghost Ship,' an analysis of an incident in World War II in which a US sub sank a 'cartel ship' and paid Japan damages.

Professor Dingman's book was largely devoted to analysis of international law of prisoners. In very brief summary, neither country trusted the other to adhere to international law, so both participated in confidence-building measures, leading to a safe conduct granted to a Japanese ship.

What struck me, a mere newspaper reporter, was that Dingman carefully crafted a story in which two countries agreed to disregard international law in order to reach an idiosyncratic arrangement (in my layman's view, a contract), which broke down in the event.

Dingman then faults the US action on the basis of international law.

I cannot think of an earlier example of blind genuflection in front of international law, and a quick search of scholarly reviews does not turn up any comment on it.

Me, I was shocked, but then maybe it is harder to shock a lawyer.
6.27.2006 3:52pm
HCP (mail):
DK says: "international law WAS a quasireligious moral code for hundreds of years more than it has been an organized system of written treaties."

I think DK and KenricH have really got it right. "International law" is basically Judeo-Christian morality without God, and with a cosmopolitan "citizen of the world" aesthetic thrown in. Its supporters get to (1) have an absolute moral view, while at the same time living a life (2) free of the religious faith they find primitive, and also get to (3) show that they are sophisticated in that they know about and care about people who live far away from, and are far different than, they are.

In a sense, a reliance on "international law" can be seen as an expression of moral superiority by people who believe that there is no higher power than their own intellect, and no more urgent cause than their own political preferences.
6.27.2006 3:53pm
TDPerkins (mail):
are enough /= aren't enough
6.27.2006 3:56pm
Becauseitstrue (mail) (www):
First time here...thanks for the illuminating posts.

With the exceptions of treaties (and the domestic laws derived from them, as described very well above) and the few basic tenets of human dignity that civilized peoples can agree upon, there is no coda of International Law to refer to or to uphold.

The IL mantra referred to in David's example--and, disappointingly by certain Supreme Court Justices, who of all people should know better--boils down to the following:

The people of X, which country I admire greatly, have passed Y into law and I think it's the correct moral response and I'm ashamed that our country is so lacking in morals. Therefore, because these folk of higher moral ground are in a different (let us say, "international") country, the law is therefore "International Law" and really ought to apply here as well if we want to be considered as good as they them, of course.

Utter nonsense, but just ask your IL folk what law exactly they refer to and you'll get something very close to the above. Rather than high moral ground, it's more like peer pressure among teens.

When arguing with a member of the IL cult, therefore, remember this: you are arguing with an emotional point of view, not a logical position. In fact, it's probably not even worth arguing. Anyone with a teenager will know what I'm talking about.
6.27.2006 3:56pm
steve k:
Christopher Cooke: The UN resolutions (regardless of their wisdom, or even whether they're real "law" or not) passed after the 1967 war do not require Israel to compromise its safety. As long as Israel's enemies have a belligerent stance, Israel is within its rights, under the resolutions, not to give back any land.

Furthermore, if "international law" demands you commit suicide, I'd say ignore it.
6.27.2006 4:12pm
Christopher Cooke (mail):
Greg Graham:

I am not an international law expert (I worked on one civil lawsuit involving the Alien Torts Claims Act, and studied international law 20 years ago), but I think most of modern international law is essentially codified in treaties and conventions ratified by the Senate, so I don't see any constitutional issue here. The modern "human rights" international law (that which creates enforceable rights in people as opposed to nations) present much more thorny separation of powers issues, but not for the reasons you suggested. For example, some judges have been concerned that allowing human rights lawsuits, or lawsuits seeking financial compensation from other countries or terrorist organizations, in US Courts risks interfering with the Executive Branch's ability to conduct foreign relations. Judge Bork, for example, holds this view.
6.27.2006 4:18pm
Max (mail):
International law is a big imaginary friend invoked by those who otherwise havew no friend who agrees with them. Fantasy versions of Geneve Convention serve a similar purpose. I am well past any tolerance for that sophistry.
6.27.2006 4:23pm
Seamus (mail):

Well I say those Romans stole the land from the Jews, which is never brought up when people talk about how Israel is land stolen.

The transition from rule by the Hasmoneans (who first invited the Romans to extend their influence to Judea) to rule by the Idumeneans and finally (when Octavian deposed Herod's son Archelaus) to direct rule by Rome was a pretty gradual one, and can't fairly be characterized as "stealing."
6.27.2006 4:24pm
Seamus (mail):
Or is "international law" largely invoked to try to restrain the actions of the U.S. and Israel, but largely ignored more broadly?--e.g., I haven't heard of any other nation's besides Israel's legitimacy being questioned because of past or even present real or imagined violations of international law.

I don't think so. The same "international law" that in General Assembly Resolution No. 194 said that refugees should have the right to return to their homes is what in General Assembly Resolution No. 181 authorized the establishment of the State of Israel in the first place.
6.27.2006 4:40pm
Seamus (mail):
I'm sorry. The first paragraph of my last post (quoted from Prof. Bernstein's initial post) was meant to be a block quote.
6.27.2006 4:41pm
Bruce99 (mail):
Question: So if the majority of world governments and population decided the Shira law should be impossed at an international level. Then do those that support the position that internaltional law overrides national laws, irrelavent of if the Nation is a signer of the treaty that formed the basis of the International Law, Would we then be obligated to live under Shira Law.

Put another way, if the Islamic Nations Organized a group of nations and created this treaty then does it apply to everyone.

If not then how can any international law have any authority except with thoses nations signing the treaty?
6.27.2006 4:44pm
Paul Gowder (mail):
So it offends you when, e.g., mayors violate state or federal law by promoting diversity (see your most recent post), but it doesn't offend you when nation-states violate international law? Isn't that a bit inconsistent?
6.27.2006 5:45pm
Harry Eagar (mail):
Max mentions, at last, the Geneva Conventions. Boy has that been a one-way street.

Yet I cannot recall any serious attack on the conventions, from a legal, practical or moral standpoint.
6.27.2006 6:03pm
Randy R. (mail):
Jallgor: A commentor wrote: "the United States has a better record than most nations when it comes to honoring treaties." I don't know if that's true or not but it would be really interesting if someone did a study and ranked countries based on their adherence to treaties.

I think if you ask the Native Americans, they will find that the US is really pretty bad at honoring treaties of any sort.
6.27.2006 6:07pm
Randy R. (mail):
Ever notice that on these boards, whenever a topic of any sort comes up, inevitably, all sorts of bad things that have happened are the fault of godless liberals who hate america. In fact, that that' is always triply redundant, of course, because all liberals hate religion and hate America.

So International law is the result of godless liberals who hate america. Never, ever, can anyone concede that there might be liberals who are religious, or liberals who love America, and want to make it better.

Nope. It's easier to just take big swipes at people and feel very satisfied.
6.27.2006 6:10pm
anonyomousss (mail):
but randy, don't you understand? liberal religion isnt real religion, and liberal members of conservative denominations dont exist, and if they do their faith is a lie. liberals who claim to love america are lying too.
6.27.2006 6:23pm
Christopher Cooke (mail):

I think the answer to your question is no, that Sharia would not be international law.

International law is usually not concerned with issues of domestic law, with the exception of international human rights law, and even then that body of "law" only imposes bare minimum standards of decency, and doesn't purport to be a comprehensive domestic code of laws.

International human rights laws are derived from principles reflected in the laws expressly adopted by the nations of the world through treaties and conventions (such as the Convention Against Genocide). The Universal Declaration of the Rights of Man, which is more akin to our Bill of Rights, is not even considered "binding" on UN members.

So, if a majority of the nations adopted a particular Islamic code for their internal laws, and said this should apply to everyone else, under traditional international law analysis, these laws would still not be considered binding on the nations that didn't expressly adopt the same laws or codes by ratifying a treaty or convention regarding them. The only exception to traditional analysis has been that, after the Nuremberg trials, and with the nearly universal adoption of various conventions on human rights, many international law scholars believe that, under principles of "customary" international law, some of these human rights principles (freedom from torture) now enjoy status as "law." (Perhaps some real international law experts want to chime in and correct may hazy recollections from a few courses taken 20 years ago?)

As for Professor Bernstein's post, I think the attraction of international law for many is the hope that it will provide a means of resolving disputes without the warfare, bloodshed and atrocities that plagued the 20th century. I for one agree that, if all of the nations followed the Conventions and Treaties that they ratified, including the UN Charter, and offered and protected the human rights described in the Universal Declaration of the Rights of Man, the world would be a much better place. Of course, I am not naive enough to think that will happen, so the question is what do we do in an imperfect world: obey these "laws" always, sometimes, or never? And, if the answer is "sometimes," which laws do we obey, and what do we do about other nations that adopt the "sometimes" or "never" option, but make different choices about which laws they are going to follow?

I think, implicit in Professor Bernstein's posting, is his belief that Israel shouldn't have to follow certain international legal principles, or rather, that adherence to such principles (assuming they exist) is still not a convincing reason to him when other good reasons exist for disobeying them. However, I don't know how he draws the line between which ones he thinks Israel should follow and which ones he thinks it should not have to follow.
6.27.2006 6:27pm
Neo (mail):
It has been said that what truly defines a government is it's monopoly on the use of force.
It is in the police force (and armies) that a government vests it's monopoly on the use of force. International laws, no matter how it is defined, currently has at best an adjudication process, but no policemen. There are no policemen because there is not international government (they would go hand in hand).
These leads to the dilemma that international law must depend on the largess of other governments for police. If these governments choose not to enforce, there is no recourse. And this is the result in most cases.
This is usually the case because there is also no legislative branch to the non-existence international government to which disagreements with international law can be addressed.

The virtually consigns "international law" to the domain that contains things like communism that works (it is always just over the horizon) and "limitless energy" (usage will always grow to devour the surplus).
6.27.2006 6:43pm
yclipse (mail):
I have noticed that there is a definite tendency on the part of some people to say that "the law requires" X when it is their personal belief that the law should require X, whether or not it does.

And that is particularly perturbing when done by those whose job it is to say what the law is.
6.27.2006 7:01pm
CM (mail) (www):
What law are we talking about here? General Assembly resolution 194, from December 1948, which is, in any case, a recommendation, so not binding under the terms of the UN Charter, resolved that "the refugees wishing to return to their homes and live at peace with their neighbours [my emphasis] should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return...."
6.27.2006 7:41pm
CM (mail) (www):
A crucial Security Council Resolution is 242 from 1967, which calls, among other things, for a "just settlement of the refugee question"

So (1) no details of what that entails

(2) it may refer to Jewish refugees from Arab countries as well as Palestinian refugees.

and (3) it is part of an overall settlement including Israeli withdrawal from occupied territories, Arab recognition of Israel and the right of all states in the region (i.e. including Israel) to "live in peace within secure and recognized boundaries free from threats or acts of force"
6.27.2006 7:47pm
eddie (mail):
Interesting that the professor did not pick an example more close to home:

Iraq was flouting international law, so therefor the US was entitled "under international law" to invade a sovereign country.
6.27.2006 7:48pm
Jamesaust (mail):
Two observations:

A) Most are correct in identifying two aspects that make IL strange "law" -- the absence of a specific lawgiver and the absence of a sovereign authority to punish lawbreaking. The absence of the lawgiver is particularly difficult in a rapidly changing world. Absent a consensus among all states, the only means of changing IL derived from custom is for at least a few states to break the existing IL.

However, its too easy to dismiss IL as NOT "law." Law is a code of behavior that persons (whether people or states) believe they are subject to and behave in accordance with such a belief. It is a rare event indeed for any state to openly declare that it is breaking IL. States - North Korea, Iran, the U.S., etc. - go to tremondous lengths to justify how their actions agree with IL.

B) Re David Bernstein's specific point regarding Israel. The core of the issue is that while there is a now both custom and treaty focusing on the laws of war, a derivative of IL, that forbids one state to occupy another state and then deport the other state's citizens or to colonize the other state with the occupier's own citizens, this prohibition - like virtually all IL - applies to the relations between STATES. Prior to 1947, there were no sovereign states in the Transjordan (only the detritus of the collapsed Ottoman Empire) and so this IL rule does not provide assistance to the issue. In short, it is being misused by those who, whatever their motiviation, describe what they WISH IL said but in fact does not. This is a common problem with IL - reflect on the varying points of view that exist domestically on many points that must ultimately be clarified by the Supreme Court ... and then erase the existence of the Supreme Court!
6.27.2006 9:38pm
KenricH (mail):

Yes, my point about UNSCR 242 was that Israel's neighbors do not pay attention to the second point of the resolution.

One of the ironies of "international law," especially when it comes to controlling conflict, is that the enforcers have to be better at violence than the offenders.

The kellogg-Briand Pact is a perfect example of the absurdity of international law. The pact outlawed war, at least among the signatories. But the only enforcement mechanism was for the countries trying to enforce the pact to be better at waging war than the offending countries that broke it. I'm trying to think of another law where the only remedy is for the injured party to be better at the banned activity than the perpetrator.
6.27.2006 9:46pm
KenricH (mail):

Your point B fits in very nicely with Berstein's description of some people having a "fanatical, quasi-religious belief in "international law.""
6.27.2006 9:52pm
Neo (mail):
The short answer to this dilemma is to ask the Reader to cite the violated international law.

It is useless to argue over a hypothetical polymorphism such as "international law."
6.28.2006 12:24am
Tracy Coyle (mail) (www):
I was interested in responding to Dr. Bernstein's question, but knowing the caliber of commentor on this site, waded through the comments to see if my point had already been made, it was, sorta.

My first thought was who voted on these 'international laws'? My second thought was, I didn't. But to answer the question put before us, the cult-like status began during the early 90's when Iraq invaded Kuwait, in violation of 'international law'. I wondered about it briefly was the statute worded? Thou shall not invade thy neighbors yard?

Still, the foundation had been set, international actions were to be grounded in international law. Many better commentors than I have discussed at length the source of international law, but I was looking for a specific wording: rules. International laws are not laws as we use them commonly here in the States, but rules, agreed to by parties to form a basis for behavior BETWEEN NATIONS. As the ICC is meant to judge individuals, I can see no Constitutional provision to subjugate our citizens to such a tribunal not bound to follow our Constitutional law. If ICC wants to judge nations, then there are treaties and agreements that are a matter for civil, not criminal remedies.

And of course, rules are made by the players. I certainly am not going to accept rules when I am not playing the game. Still, I need to return to the question at hand. During the course of the 90's, the US continued to act in ways that offended some of our international friends, such offense of course being personalized at home by those that wish to curry favorable press in international circles. By the late 90's and 2000, we had a potential President that seemed to put America first regardless of the refined sensibilities of the 'internationally' inclined.

Bush's actions to protect America first, and appease the internationally inclined not at all, gave energy to the huff brow: "well, such impertinence". Yes, well. So, we reach the point of your emailers: international law is more important that nationalism, of course. Only those with a desire for national suicide would hold such an opinion, and why would we bother to pay them any attention?
6.28.2006 1:12am
A few points:

1) I think some of the posters are confusing international law with the use of foreign law by US courts. Those are two totally separate issues.

2) As some other poster mentioned, most modern international law is treaty-based. And most of it is quite conservative and boring: it deals with things like diplomatic relations, international trade, international transport, how to make and interpret treaties, etc. Let's not let a few controversies at the margins (e.g., does the self-defense exception to the prohibition of the use of force in the UN Charter permit pre-emptive self-defense?) distort our perception of what international law is and does -- and isn't and doesn't do.

3) To those posters who demanded to see the "international code book," you might start here.

4) Perhaps the problem peculiar to international law is that extremely few people understand what it is and how it works. (See 95% of the preceding posts.) Maybe law schools should start adding it to the first-year curriculum.
6.28.2006 1:22am
Randy R. (mail):
Yup, and if IL was just a liberal plot to destroy America, then why did Bush One use it to justify the Gulf War? And why did Bush Two use it to justify Iraq's violation of IL to invade?

Maybe they are closest godless liberals who hate America.....
6.28.2006 1:56am
More thoughts:

1) Bruce99 asks whether Sharia would become international law if a majority of states decided it should. Of course not. International law is not majoritarian. Treaties only bind the signatories, except when they have such enormously widespread adoption (like the UN Charter) that they become customary. Obviously that would never happen with the Sharia example because many states would never sign such a treaty.

2) Tracy Coyle asks for the wording of the "statute" that prohibited Iraq from invading Kuwait. Try this:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

UN Charter, Art. 2(4). I suppose you're right that you didn't personally vote for this law, but the people of the US elected a President (or, more precisely, a Vice President who later became President) who signed it and a Senate that ratified it.
6.28.2006 2:02am
Tracy Coyle (mail) (www):
Made my post, turned off the computer, went to bed. Then realized the right answer to the original question:

Dec 12, 2000.

For the 27+ years previous to that date, the liberal wing could try to legislate, and if that failed, fight in court, and failing that, as a last resort, count on the Supreme Court to side with them.

Until Bush v Gore. The Supreme Court had failed them. Leaving nothing for them to claim higher moral ground, except, International Law.

That, is my final answer.

Thanks to DG for his ref.
6.28.2006 2:14am
Ship Erect (mail) (www):
From Bernstein's original post on down, most posts seem to imply that believing in the existence of an imaginary being is foolish, at base. Are we to take from this discussion that no one here is religious at all?

I find that hard to believe, so to speak. So why are people arguing that international law is stupid, but God is not?
6.28.2006 4:01am
anonyomousss (mail):
Perhaps the problem peculiar to international law is that extremely few people understand what it is and how it works. (See 95% of the preceding posts.)

surprisingly for a law blog, most of the commenters seem to have little idea what law is at all. many have argued that there's no international law because there's no legislative body that passed a code, but lots of american law is like that too. just from my 1l curriculum, property, contract, and tort law are mostly uncodified common law. american criminal law was mostly like that too until the model penal code was written a few days ago. so its quite easy to have law without any kind of legislative body ever passing any laws.
6.28.2006 11:09am
Randy R. (mail):
I think some of the hostility to IL arises from commentators on Fox news who have decried the fact that the Supreme Court has recently relied upon IL to make a decision that you can not execute a mentally ill person convicted of a capitol crime, or an underage person, and that you can not incarcerate people who have consensual sex.

Although the Supreme Court did not exclusively rely upon foreign law or international law to support their conclusions, they cited to them, and that got conservatives very angry. Why? Because they want to execute mentally ill people and teenagers for capital crimes, and they want to throw gay people into jail.

Fortunately, the SCOTUS ruled correctly, and the majority of Americans in various polls have shown that they support those rulings. But IL makes a convenient scapegoat.
6.28.2006 2:56pm
B Dubya (mail):
International Law...Kofe Annan...the totally corrupted organism of the UN. You can see where I am going, Im sure..

International law stops at my nations's border, unless you bring something to enforce it, and I don't mean the French AMX-30. If the IL crowd thinks they can enforce it with out the sound of violins (sic), they are as delusional as the French are gifted militarily.
6.28.2006 5:51pm
Christopher Cooke (mail):
Randy: I think you are referring to foreign law references in the Supreme Court's opinions applying the "evolving standards of decency" test to determine whether a given punishment violates the 8th Amendment. Foreign law is the domestic law of other nations; international law is the law "among nations" which now has a human rights component to it.

I think people in the US who are hostile to international law see it as an infringement on US sovereignty (Tracy's posts suggest she views it this way). My answer to that is that there is no infringement on a country's ability to decide its own affairs if that country has already voluntarily agreed to abide by a treaty or convention, and thus adopted its provisions as part of its domestic law.

I agree with DG's posts. On a day-to-day basis, international law works fine and is not controversial. For example, I have used "international law" (the Hague Convention) to obtain depositions and discovery in other countries via letters rogatory and letters of request, for use in US court cases. No one really cares about this application of international law (except maybe the litigants).

The only time international law is very controversial is when it is applied as a means of resolving some very controversial event, e.g., one country seeks to invoke international law as a reason for going to war. Even then, very few countries go to war or deploy their military because international law is violated; they use military force to stop the activity that may also violate international law, but they do so because they oppose the activity, and not just because the activity is "illegal" under international law (such as, stopping the genocide in Darfur because it offends our sense of morality; or GHW Bush's decision to attack Iraq over its invasion of Kuwait).

I would guess that Professor Bernstein's email correspondents probably favor a return of land to those Palestians who left Isreal, regardless of whether Israel's annexation of the land, or alleged refusal to return the land to them, violates international law. But, instead of arguing the morality of their position, or addressing the merits of Professor Bernstein's arguments they seek to cloak it as mandated by "international law." Maybe they assume that he, as a law professor, will find that a compelling reason.
6.28.2006 6:18pm
Randy R. (mail):
I agree with you, Chris Cooke. You are right on target, except with regards to comments like Tracy's. She clearly stated that the 'liberals' lost in their attempts to legislate. Well, liberals are have never tried to legislate when they go do war, but they have tried to legislate health and safety laws, environmental laws, rights for blacks, women, gays, and other minorities, various aspects of criminal laws and so on. Sometimes they win, sometimes they loose. And liberals will try other tactics, such as suing in courts to enforce the laws I just mentioned. THAT is what Tracy and others are upset about -- that some judges actually believe that the constitution guarantees rights to minorities that they don't like.
6.28.2006 6:56pm
Shalom Beck (mail) (www):
Two points on Israel and international law:

1. UN Security Council Resolution 242 mandates that Israel return land for peace. Since the Palestinians have never offered peace in exchange for land, and have violated the temporary, conditional cease-fires they have made, Israel is not in violation of the resolution by continuing to occupy parts of the territories.

2. Since Israel's occupation of the territories is a legitimate act of war, the security fence, built in large part on occupied territory, is not a violation of international law. Unless we say that international law is what the World Court says it is, in which case it is not genuine international law but the decrees of the sovereign World Court.

3. While it is often claimed that Israel has violated international law by settling civilians in the occupied territories, as Cornell international law professor Jeremy Rabkin has pointed out, this claim is made only against Israel, and not against the numerous other states that, since 1967, have continued to settle territories won by conquest with their own citizens.
6.28.2006 7:29pm