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Wedgwood: The ICC is a Bad Idea

Legal Affairs: Rwandan Ghosts

Andrew McCarthy: International Law v. the US




The week of 1/17/05

Is International Law Useful?

Eric A. Posner and Oona Hathaway debate.


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In their forthcoming book, The Limits of International Law, Eric A. Posner and Jack L. Goldsmith argue that current international law reflects the self-interest of powerful nations and lacks the capacity to influence their actions. Enforcing the rules of institutions like the International Criminal Court that promote universal moral standards is, they argue, nearly impossible.

But it's also widely believed that such law is essential in an increasingly globalized world. Is international law really powerless?


Eric Posner is Kirkland and Ellis Professor of Law at the University of Chicago. Oona A. Hathaway is Associate Professor of Law at Yale Law School.

Posner: 1/17/05, 02:47 PM
Hi Oona, Why do you think that states keep creating international tribunals after decades of failure? As you know, there are two relatively new tribunals: the International Criminal Court, which has jurisdiction over international crimes; and the International Tribunal for the Law of the Sea, which has jurisdiction over maritime disputes. The ICC seems to be doomed by U.S. opposition to it, and whether one thinks that this opposition is justified or not, it is an inescapable (bipartisan) political fact that must be recognized. The ITLOS also appears to be unpopular, and so far has heard few cases and none of significance.

The tribunals established to adjudicate crimes committed in the former Yugoslavia and Rwanda are farcical. They have consumed enormous resources while convicting a tiny number of wrongdoers and (especially in the case of the Yugoslavia tribunal) providing a platform for those wrongdoers to rally their followers and stir up a xenophobic reaction at home. The granddaddy of international courts, the International Court of Justice, is rarely used, frequently ignored, and justly derided. And there are many failed regional courts like the Inter-American Court of Human Rights and the Central American Court of Justice.

To be sure, there are a few bright spots. The GATT/WTO system is humming along. And the European Court of Justice has accomplished a great deal. But these are special cases, and I suspect that the explanation for their success rests on the small number of important players in both regimes: the U.S., E.U., and Japan in the first case, and France and Germany in the second. They are not true international courts in the sense of involving a large number of states as equals, all of them subordinate to the rule of law. So they can't be reliable precedents for creating an ICC or ITLOS.

The rational choice approach to international law allows states to err, but eventually they should update their beliefs and not make the same mistake too many times. So what's going on here? I see three possibilities. First, states are still learning, but eventually they will abandon international adjudication in favor of diplomacy and simple forms of arbitration. Second, there is a rational choice explanation for true international adjudication, but trial and error are necessary before the right design is achieved, and the trial and error are still going on. Third, my empirical premises are wrong, the existing tribunals have performed well, and we must look elsewhere for an explanation for their success.

A cynic might think that international tribunals have no value whatsoever, and that governments create them in order to mollify legalistically minded constituencies but with no intention to submit serious disputes to them or comply with adverse judgments. But one wonders whether such a pretense could be maintained for long, and in any event international adjudication does not have much public visibility.
Hathaway: 1/17/05, 11:34 PM
Why do states keep creating international tribunals, you ask? If the record were really as dismal as you suggest it has been, it would indeed be utterly absurd for them to do so.

Thankfully, the record is not as bad as you suggest. There are problems, to be sure. But before we start searching for a grand theory of state irrationalism, let's get an accurate picture of the successes—and, yes, weaknesses—of international dispute resolution.

True, there is no international police force that enforces the judgments of major international courts. Nonetheless, compliance with the decisions of these courts has been remarkably good. You say that the International Court of Justice is "rarely used, frequently ignored, and justly derided." Only one of these assertions is true: The court has a small docket because it has jurisdiction only over disputes between states, which tend to be resolved through quieter diplomatic channels. Only when these methods break down do cases end up at the court. Given this, the record of compliance is stunningly good: Even the most conservative estimates indicate that the vast majority of the ICJ's decisions are followed by disputing states.

The same is true, as you acknowledge, of the Dispute Settlement Body of the WTO, which has been widely praised. And contrary to your indictment, it is too early to tell much about the likely success of the International Criminal Court (ICC), which is still in its formative years, or the International Tribunal for the Law of the Sea (ITLOS), which has only been in place for eight years. There is no reason to assume they will be failures, as you seem to assume. The ICC already has 97 state parties. And while the United States is not one of them, it is not impossible to imagine that the court could nonetheless be a success, albeit one with more limited scope and power than would be the case if the United States were its advocate rather than its enemy. True, the ITLOS has only heard twelve cases in its first eight years. Yet those cases are generally regarded as having been successful—again, a remarkable achievement given the absence of any enforcement power. And bear in mind that these are just a few of the international dispute resolution bodies—there are also well over 50 quasi-judicial bodies that don't make the headlines but which form the backbone of the international legal system.

If I am right, though, and if these courts really are much more effective than you say, that too creates an interesting puzzle: Why would states be willing to agree to the jurisdiction of these international courts? I think that they do at least in part because sometimes the alternatives are worse. Take border disputes, for example, which make up a significant portion of the ICJ's docket. The cases that reach the court are ones that have not been resolved through diplomatic channels. What is the alternative to submitting the case to the ICJ? Because it is hard to imagine that any domestic court willing to address such an issue could fairly and legitimately decide the case, the most likely alternative to resolution in the ICJ is either continued failure to resolve the issue—which means that neither side can invest in the area without substantial fear of retribution or future loss—or one state simply seizing control of the disputed territory using military force. In fact, my empirical research supports this claim: States with weaker military capacity (and hence more likely to suffer losses if a dispute is not resolved by an international court), are more likely to agree to the ICJ's jurisdiction than are states with stronger militaries. Viewed this way, it's not so hard to imagine why states would agree to the ICJ's jurisdiction, or why they would obey its decisions once rendered. It's also not so surprising that they would create such courts in the first place.

Let me end with a question of my own: If I haven't convinced you that international adjudication holds promise, what do you propose in its place? If the ICC is doomed to irrelevance, then how are crimes against humanity to be dealt with in the future? And if the ICJ is to be abandoned, how should we expect states to resolve the disputes that now end up there?

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Posner: 1/18/05, 11:31 AM
The type of case that the International Court of Justice has been able to handle most effectively—the dispute over territorial boundaries—was, prior to the ICJ's establishment, routinely handled through diplomacy and international arbitration. There is no reason to think that the ICJ has improved on the record of arbitration. Indeed, the increasing use of four-judge ICJ panels shows that the arbitration model is alive and well; to survive, the ICJ has had to drop some of its judicial trappings.

The answer to your second question, then, is that diplomacy and arbitration will resolve disputes between states, just as they did for hundreds of years before the creation of the ICJ; indeed, diplomacy—backed as always by the threat of violence—has played a far more important role in resolving disputes than has the ICJ during its sixty year existence. To be sure, some disputes are insoluble, and these lead to war. But it is better to recognize war as an inescapable fact of human existence, and to prepare for it, than to think that it can be eliminated through reliance on judicial process.

Crimes against humanity will also occur regardless of whether international courts exist or not. The ICC isn't doomed to irrelevance, but it will be used the same way that ad hoc tribunals are used today—when a coalition of powerful states agree that international criminals in a defeated, vulnerable, or helpless state should be tried and punished. International trials of people who commit crimes against humanity and other atrocities have been rare throughout history not because of the lack of international judicial capacity, but because states have rarely had any interest in trying such people.

History shows that if locals can't or don't want to convict their former leaders or fellow citizens of international crimes, then there is no way for foreign states to extract the suspects from hostile territory and try them in an international court without risking war or dangerous instability in the state in question or the sacrifice of other important interests. Nuremberg and Tokyo were rapidly followed by embarrassed retreats, as the United States and other occupying powers realized that they could not try the entire population or even the ruling class because they needed it to run the bureaucracy, staff the police and military, and bring the economy back into operation, so that chaos could be avoided. In international relations, reconciliation is almost always a better policy than punishment, which alienates the defeated population and interferes with reconstruction.

So how are crimes against humanity to be dealt with in the future? Like in the past: episodically, in ad hoc fashion, when the desire to do justice and geopolitical interest happen to converge.

Hathaway: 1/18/05, 03:30 PM
Yes, states managed to muddle through without international courts (though not always all that well, I must say). And, yes, the world would not descend into chaos if we got rid of them, but that seems to me to miss the point. The question is not whether we could manage without international courts (we undoubtedly could), or whether international courts solve all the world's problems (they undoubtedly don't), but whether we are better off with them than we would be without them.

If that, then, is the right question, what is the answer? I think that even though international courts are not a cure-all for international conflict, at least they provide a forum for peacefully resolving disputes. That does not mean that states can or should abandon other avenues to the same end—most notably quasi-judicial arbitration and diplomacy. But it does mean that the world is better off with one more set of tools for dealing with those disputes that may not be resolved peacefully any other way. War may be, as you say, an inescapable fact of human existence, but can we not (indeed, must we not) seek ways to make it less frequent?

Crimes against humanity will of course occur regardless of whether international courts exist or not, just as murder and theft will occur regardless of whether domestic criminal courts exist. That is not an argument against having such courts, though. The question is whether those crimes will be less frequent if the courts exist. While the ICC may not have the enforcement power of U.S. criminal courts, it can call upon the resources of member states. Again, it is impossible to know for certain how the court will function in practice, but I think it reasonable to assume that at the very least the kind of people who are now being tried by the ad hoc war crimes tribunals will be the kind of people who will be tried by the ICC. But the process will be less expensive (we won't have to reinvent the wheel for every conflict) and fairer (there will be less of a sense that a particular country has been singled out for punishment). It is true that those who are prosecuted by the ICC are more likely to come from failed states. But that is not because of a political bias by the ICC, as you seem to suggest, but rather because the court is set up as a court of last resort—it only has jurisdiction if domestic courts are "unwilling or unable to genuinely carry out the investigation or prosecution." I would think that you would applaud, not attack, this minimalist approach.

You say that we should instead deal with these crimes as we have in the past— "episodically, in an ad hoc fashion." But you have also attacked those same episodic, ad hoc efforts as "farcical" and as having led to "embarrassing retreats." If that is true, then what you are really saying is that the international community should abandon responsibility for addressing these crimes. I believe that would be unforgivable.

The international courts are imperfect, of that there is no doubt. But though we agree on this much, it seems we fundamentally disagree about what we are to do as a consequence. I do not think that we should tear down these new institutions in an effort to return to the past. We should instead work to help these courts do their jobs better in hopes that we can, in doing so, create a better future.


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Posner: 1/19/05, 12:22 PM
A "minimalist" version of the ICC was promoted by the United States, which sought to subordinate the ICC to the Security Council. The proposed court would be subject to the Security Council's normal voting procedures including the veto rights of the permanent members. Such a version might have been an improvement over the ad hoc approach. Redundant start-up costs are avoided, as you say; but a permanent system has costs as well, including the rigidity introduced by fixed procedures and a permanent bureaucracy. By contrast, the procedures and personnel of ad hoc courts can be tailored for the situation at hand. Without more information, I don't see how one could conclude that international crimes would be more effectively adjudicated by a minimalist version of the ICC than by ad hoc tribunals, though this conclusion is possible.

But the ICC that exists is not the minimalist version. Independent prosecutors and judges can indict and (if they catch them) try leaders and soldiers not just from America, Russia, India, and China despite the refusal of these states to consent to jurisdiction. It can also prosecute leaders and other individuals caught up in civil wars, defensive wars, and other crises and disturbances—as long as the jurisdictional requirements are met. These problems are distinct. As for the latter, we know from the Yugoslavia experience that even a relatively constrained tribunal can stir up all kinds of trouble by issuing indictments in the midst of hostilities. Such actions can delay peace and incite further atrocities by persuading leaders that the reward for reaching a political settlement is jail. Under the minimalist version, it is conceivable that the Security Council could prevent such mistakes in the future by issuing narrow instructions; but the actual ICC cannot, as a practical matter, be so constrained.

It is thus far from clear that a world with the ICC is better than one without. In your last entry, you omitted any mention of this or similar problems, and talked as though courts could only provide benefits because they give states new options. Is that because you do not believe that there is any possible cost to international tribunals, or do you just think that all such costs are necessarily swamped by the benefits?

Given the implacable opposition of the U.S. to the ICC, what do you mean when you say that "we should ... work to help these courts do their jobs better"? I hope you don't mean that we should try to persuade the U.S. government to drop its opposition. The only realistic approach is to address its (and China's and Russia's and India's) concerns in a manner that does not undermine the whole project. Do you have any ideas about how to remodel the ICC so that it could do its job more effectively?


Hathaway: 1/19/05, 04:39 PM
Handing the Security Council power over prosecutions at the ICC certainly would have been "minimalist" (even more so than the current ICC, I suppose), but it would have also been a huge mistake. Doing so would have created two classes of justice: One for those who are members of the Security Council or closely allied with them and one for everyone else. There may be an argument for this kind of inequity in other areas of international affairs, but not when it comes to providing accountability for the most significant international crimes.

The parade of horribles that you claim the current ICC will produce just isn't realistic. You yourself note two of the important limits on the ICC as it stands: The Court cannot reach into countries that have not acceded to its jurisdiction, nor can it re-try cases that have been pursued by a member state. Yes, the ICC could conceivably try individuals caught up in "civil wars, defensive wars, and other crises and disturbances," but only if (1) the state where the individual is present had ratified the ICC, (2) the individual committed one of a limited set of "the most serious crimes of concern to the international community as a whole," including genocide and crimes against humanity, and (3) the country itself is "unwilling or unable to genuinely carry out the investigation or prosecution." If any of these three conditions is not met, the ICC has no jurisdiction. This seems extremely limited to me. Why, then, do you find it so troubling?

You do make a valuable point about the effect of threatened or potential prosecutions on ongoing conflicts. It may be true that, in some circumstances, the threat of prosecution by an international court could cause a leader that has committed atrocities to hold onto power a bit longer than would otherwise be the case. But isn't it just as likely that a well-functioning permanent ICC could discourage those same leaders from committing those atrocities in the first place? Ad hoc, episodic efforts at imposing justice after the fact simply can't have the same power to dissuade. So, yes, I see that there are some possible costs. But I think that the potential benefits far outweigh them.

What do I mean when I say that we should work to help these courts do their jobs better? I mean that if we are concerned about the prosecutorial power of the ICC, we (and here I mean those of us who care about international affairs, not the United States as a whole) should offer proposals for cabining that discretion (here, Allison Marston Danner's excellent work comes to mind). And if we think that the ICJ is ineffective or biased, we should seek to discover why and offer suggestions for revising the institution to help overcome those problems.

In closing, I'd like to broaden the scope of our debate back out once again. It seems to me that there's an inherent contradiction at the heart of what you have written during the last few days. Your last post suggests that you hold the view that international law is not just irrelevant but in fact actively harmful. Yet you also argue here and elsewhere that states are rational actors. How can both propositions be true? Why would so-called "rational" states create and engage in "harmful" international law?

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Posner: 1/20/05, 01:47 PM
Why is it so easy to dismiss America's objection that the ICC is likely to be politically biased? You treat the longstanding, bipartisan American view as a pretext while taking the European countries' claims at face value, even though virtually none of the parties of the Rome Statute have shown themselves willing to take significant military or financial risks in order to prosecute international crimes in the past. American international law scholars ought to treat foreign nation's claims with as much skepticism as they do those of their own country. Given the unwillingness of the major military powers to subject their own citizens to jurisdiction, no effort to save the ICC can succeed without creating the two class system that you find so objectionable. (And because of its failure to enlist so many large states, it is, de facto, just such a system, as negotiations over possible ICC involvement in Sudan illustrate.)

I do not "believe that international law is not just irrelevant but in fact actively harmful." None of what I had been saying would make any sense if I thought international law was irrelevant.

I certainly don't think that international is necessarily harmful, if that's what you mean. Sometimes it's harmful and sometimes it isn't. It wouldn't make any more sense to say that international law is necessarily harmful than it would be to say that domestic law is necessarily harmful. Nor would it make any sense to say that international law is necessarily good—just as it wouldn't make any sense to say that domestic law is necessarily good. It depends on what the law does.

Particular areas of international law may certainly be bad; and particular international institutions may also be bad. I can't imagine that anyone would deny these claims. So I will rephrase your question as follows: why might rational states enter certain treaties or create certain institutions that are harmful?

The answer depends on the setting. Sometimes, the harmful international law harms someone else—for example, the Nazi-Soviet Pact. Sometimes, it harms the citizens of states while benefiting their leaders—all kinds of debt contracts have this characteristic. Sometimes, powerful states obtain the consent of weaker states to disadvantageous law by threatening worse consequences. Peace treaties often (always?) fit this description. Sometimes, states have no practical alternative to joining a harmful legal regime. Newly independent states in the 1950s and 1960s found themselves bound by customary international law that prohibited expropriation of property owned by foreigners, even though expropriation may have been a sensible, prudent, just, even globally welfare-maximizing policy, for all I know. Smaller, poorer, newer states constantly find themselves confronted by the choice between abiding by a system of customary international law or a multilateral treaty that they don't particularly like, or assuming pariah status.

As I noted in my first posting, error is not incompatible with rationality, although repeated error about the same subject may be unlikely. But I don't think states repeatedly err. If the ICJ turned out to be a mistake, the GATT system constructed at the same time has been a success. If the ICC turns out to be a failure, perhaps it will be matched by an as yet unrecognized success that's currently in the works. I do agree, however, that sometimes international law reflects popular enthusiasms, misguided idealism, domestic political failure, symbolic politics, propaganda, and the like—the Kellogg-Briand Pact is the best example, the UN charter's use of force rule may be another—and that these cases are not usefully analyzed from the perspective of rational state interest. But these cases are rare even if spectacular.

Observe, by the way, that your question is inapt for the ICC. The states that believed that the ICC would harm their interests never consented to its creation. The states that supported the ICC no doubt saw advantages. Suppose, for example, that these states believed that the ICC would help reduce American military adventurism that they object to, while at the same time posing no risks for their own citizens because their own citizens are rarely sent out on military missions. That they would support the ICC and that the U.S. would oppose it are consistent with the premise of rational state action.


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Hathaway: 1/21/05, 09:26 AM
I don't dismiss America's objection that the ICC is likely to be politically biased out of hand (though I think the fears of those who make this claim are overblown). Like you, I think that international institutions and international law can have both good and bad effects (even both at the same time). International law can benefit some countries while harming others (to use your examples, the Nazi-Soviet pact was "good" for the Nazis and Soviets, and not so good for anyone else; imposed peace treaties are "good" for the imposers and not so good for the imposed). It can even benefit some and harm others within a single state (for example, trade treaties can benefit consumers while hurting import-competing industries).

What seems to me so troubling about your view of the ICC (and, to a lesser extent, the ICJ) is that you seem to place the interests of the United States above all else. The ICC might be "harmful" to the United States (if one accepts the claim that the ICC could be used to prosecute U.S. soldiers fighting abroad). But it might also have lots of other beneficial effects, not least for the citizens of states whose future leaders might be less likely to commit atrocities knowing that prosecution at the ICC is a realistic possibility—which is, incidentally, certainly in the United States' long-term interests, broadly conceived. We shouldn't simply conclude that the ICC might be used in ways that are sometimes against U.S. interests and stop the inquiry there. We must also ask whether these potentially harmful effects of the institution are actually likely to occur (I think that they are not) and whether there are countervailing positive effects that might outweigh any possible negative effects (I think that there are).

What I still find confusing about your position, though, is how you reconcile your view of the overall effect of the international courts (generally bad) with the fact that they still exist. Not only that, but more countries are joining them every day. If the ICJ was such an abysmal failure, why is it still around after almost 60 years and why have 65 countries taken the significant step of ceding to its compulsory jurisdiction over disputes that fall within its ambit? If the ICC is not only (in your words) "doomed" by U.S. opposition, but actually harmful, why have 97 states and counting ratified in the just over six years since it opened for signature? If you believe that states are indeed rational, either these 97 states are simply mistaken about the likely effects of the ICC or the treaty really does benefit those 97 states (as your recent post seems to allow). Why is this not pretty strong evidence that the Court's overall effects are likely to be positive?

Let me close again with one final question. It seems that much of this debate relies on a view about how we decide whether a particular international law or international institution is "good" or "bad." How do you think we ought to resolve such questions?
Posner: 1/21/05, 12:19 PM
Why is it that international legal scholars always assume that someone who is skeptical about international institutions must put the "interests of the United States above all else"? In none of my writings have I argued that the U.S. should pursue its interests at the expense of other nations. What may distinguish me from others is that I am willing to take American positions as seriously as those of other countries. The common assumption among international law scholars that the U.S.—out of sheer perversity, or because it, uniquely among all major nations, misunderstands its own long-term interests—stands in the way of the proper development of international law (Kyoto, the ICC, etc.) is one of the most discreditable aspects of this field of scholarship.

As an empirical matter, I do think that the U.S. does put its interests above all else, but that in this respect the U.S. is no different from any other nation. The role of the academic is not to berate the U.S. for pursuing its interests, but to understand how self-interested nations can most effectively cooperate with each other.

I don't think the decline of the ICJ is hard to explain. The U.S. supported it initially because at its founding the U.S. and its allies and dependencies dominated the United Nations, and therefore the U.S. expected to dominate the appointment of ICJ judges as well, but with the rise of newly independent states and the decline of U.S. relative power, the U.S. lost control over the ICJ just as it lost control over the General Assembly. As weak states gained influence over the ICJ disproportionate to their power, the strong states began to withdraw from it and in the process weaken it as an institution. The empirical evidence of decline is multidimensional and, in my view, persuasive, but it is also complex and I can only refer the reader to my paper on the subject.

That 97 states have joined the ICC indicates that these states thought that such an institution would be good for them, but not necessarily for the 94 states (including the largest states) that did not join, or for the world as a whole, which can be injured even when 97 states (or their governments) are benefited. But what was going on here is that conflicting interests prevented the creation of the minimalist version that might have been mildly beneficial to the world as a whole (though we'll never know), and so one coalition went ahead with the more ambitious version in the hope, apparently disappointed, that the other coalition's opposition was merely a bargaining position and not a reflection of its interests.

As to your final question, the only way to evaluate particular international laws or institutions is against a moral benchmark. Suppose, for example, that one takes the welfarist view that every person is entitled to equal weight in a global utility function. International laws are good to the extent that they promote global welfare.

Let's apply this approach to the ICTY and ICTR. One possible benefit of these institutions is, as you say, that they deter people from committing human rights abuses in the future. However, these tribunals have managed, over ten years, to convict fewer than two dozen people, and as the tribunals are winding up their affairs, the total number of convictions in the end will not be much higher. If someone in, say, Darfur knows about these tribunals and their degree of effectiveness, he would probably calculate that the chance that he will ever be tried for committing atrocities is infinitesimal, as in any such situation the number of perpetrators will exceed thousands. Thus, the deterrence value of these tribunals is small. And simply taken as institutions that are supposed to do backward-looking justice, their actual accomplishment relative to the task at hand has been miniscule.

On the cost side: the current combined annual budget of the Yugoslavia and Rwanda tribunals is roughly $500 million. And, as I have noted, the Yugoslavia tribunal interfered with efforts to achieve a peace agreement, and, by stimulating a xenophobic reaction, has interfered with the Serbian transition to democracy and normalcy.

The huge expense and trivial results are not due to start-up costs that could be avoided with a permanent ICC. They are due to a basic structural problem. The tribunals can function effectively only if they can persuade their target audiences that they are impartial, and they try do this by granting defendants an incredible amount of process. This is why Milosevic's trial can take 3 or more years. But the tribunals have failed to persuade anyone they are impartial, and they can't because, by accident and design, they are not. By design, they are not: they can't try NATO forces. But, more significant, they can't be impartial (or be perceived as such), because the world disagrees too much about the basic norms and processes that determine whether a person should be indicted, tried, and convicted, so any such action will look biased to one side. Infinite process is an understandable but futile way to address substantive disagreement.

If I read Oxfam's web page correctly, $40 can feed a family of four for one year in Ethiopia. So the ICTY and ICTR budgets could feed more than 10 million Ethiopian families in a year. Or these budgets could be used to convict another dozen Serbs and Rwandans, providing a miniscule deterrent to people who are thinking about committing atrocities. Now one could try to justify this sacrifice of 40 million starving people as the first step toward a better world in which no one commits atrocities because they fear the hand of international justice. But I had thought and hoped that this kind of thinking—where millions are sacrificed today for the sake of a utopia that is always receding into the future—had had its time in the sun and been finally put to rest.

Hathaway: 1/21/05, 04:14 PM
It's not that I assume that someone who is skeptical about international institutions must put the interests of the United States (or at least his own view of what those interests are) above all else. But I find it hard to explain your relentlessly negative view of international law in any other way.

You suggest that the best way to assess whether international law or an international institution is "good" is to examine whether it contributes to the greater good better than any alternative use of the money that would be spent to support it. While perhaps noble in the abstract, that seems an unrealistic and unwise standard to use for international law—and it's a standard I can't imagine we would expect other matters of public policy to meet.

We look at the same empirical evidence and yet we see such different realities. Ninety-seven states have ratified and over 130 have signed the treaty that creates the ICC in fewer than seven years. That's a lot of states that think it's doing something right. Yes, adjudication in the ICJ has become less frequent. But it is of course entirely possible that far from being a sign of failure, this is a sign of the court's success. If the ICJ's resolution of cases has led to a more regularized understanding of the governing law in the areas in which it intervenes (maritime boundary determinations come to mind), then you would expect states to better understand their rights and responsibilities and hence resort to litigation at the court less frequently. Moreover, since the founding of the ICJ almost 60 years ago, close to 20 new international courts have arisen. Is it not possible that some of the cases that might have once been heard in the ICJ are now heard in these other courts? If so, can a declining docket really be said to be definitive evidence of the ICJ's failure?

It's not that I don't see the failings of these international institutions. I know as well as you do that they are far from perfect. But, again, the right response to this conclusion is not to give up on them but to work to improve them. Yes, the Yugoslavia and Rwanda tribunals are costly and have questionable deterrence effect. But they have arguably removed the most dangerous actors from the political scene at a crucial moment, reducing the likelihood of a return to violence. And they have made a crucial statement that some crimes offend the world community and that the world community has a responsibility to respond. The ICC is an effort to learn from these experiences and improve upon them. The treaty that creates it is not perfect, but it doesn't have to be. It has to be good enough to more good than harm, and it has to be capable of change as lessons are learned about what works and what does not.

Let me end this discussion by thanking you, Eric, for a lively conversation, as always. I look forward to many more just like it. And my thanks, too, to Legal Affairs, for creating such an interesting forum for exchange and inviting me to contribute to it

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