The article in Der Spiegel today that Co-Conspirator David Bernstein criticizes below has received a lot of deserved pushback. My feeling overall about this kind of analysis – as well as Mary Ellen O’Connell’s analysis and my own and that of others – is that what we call international law has been fragmenting for some time now into different “communities of interpretation and authority,” as I somewhere called it.
Those communities have moved sufficiently far apart that they no longer share a common basis for authoritative interpretations of international law. Rather than taking the tack of Der Spiegel and tacitly asserting the authority of professors of international law at the University of Cologne to declare the right and wrong view, a better approach would be to speak more modestly in terms of “plausibility” – “more” plausible and “less” plausible views of international law. Der Spiegel would do well to adopt a more modest and less categorical view. The US view of this is, in my estimation, vastly more plausible than Der Spiegel’s. One reason for that is that the US government has skin in the game. It matters what the US government thinks, because if international law is to remain relevant to anything besides professors in Cologne or, for that matter, Washington DC, it cannot depart too far from the views of the great powers.
International law is grounded in the practice of states, and the practice of some states matters more than others. One might think that wicked or unjust or what have you, but if one wants international law to be something more than law professor fantasies, it has to be grounded in how states behave. International law can get a little bit ahead of where states want to go, but not very far ahead. It is not just the United States that matters, quite true. I sorrow to say it, but it is true that China’s views of human rights law and internal interference matter a great deal.
I wish it were otherwise, but China’s views matter a great deal more than Ireland’s or Germany’s or many other countries. There is room for some push-back against dubious great powers like China, but in the end the law is not set by NGOs or academics or international commissions, but states in their behavior and opinio juris. This is not realist cynicism; it is, rather, the pragmatism that the US government’s approach to international law has always taken. This pragmatic approach is always infuriating to believers in international law as the beauty of the spheres.
But the US government’s pragmatic view – long at the center of State Department legal approaches, including the one that authorized the killing of Bin Laden as a lawful attack against a lawful target in an armed conflict – is best seen as protecting this important, but fragile, category called international law … from itself. From its most enthusiastic supporters, who are always willing to purify it into a form of law suitable only for uninhabited planets or maybe heaven.
I’m a believer in international law – as a pragmatic activity that inevitably fuses law, politics, state practice, and diplomacy. International law can be the the natural law of the moon if it wants, and it can get there by paying too much attention to professors and too little to how states on earth actually behave.
(Note: I’ve edited this to take out a couple of cheap shots; I was annoyed at the article’s tone, and still am. My thanks to an unnamed friend for raising this with me. As Bobby Chesney’s post at Lawfare points out, there is a lot of convergence between the US view and Professor Kress’s view. My point is less with respect to substance than to a certain superciliousness and condescension about the approach to international law. Even if there is convergence on the substance, the American approach to getting there is not really plausible, because it is not sufficiently legal; the American reply would be, referring the the “pragmatism discussed below, what you seek is not an approach that is more legal over political, but merely legalistic.
But yes, I do think the tone of the Spiegel article was sneering in parts, came close to suggesting that the Obama administration acted in bad faith in its version of international law and, in my view, would have taken that next step of flat out saying bad faith had it been other than President Obama. To put that on the table two days after the killing of Osama Bin Laden, of all people, in an operation as cleanly executed as this requires an approach to international law that I, at least, would regard as otherwordly at best, even if it has convergences on points of substance with the US government’s view.)